Glass 




Book: 



'B^s ' 



, 

/ 



TWO LECTURES 

ON 



THE PRESENT AMERICAN AVAR. 



BY 



MOUNTAGUE BERNARD, B.C.L., 

CHICHELE PROFESSOR OF INTERNATIONAL LAW AND DIPLOMACY 
IN THE UNIVERSITY OF OXFORD. 



NO r EMBER, M D CCC LXI. 



J. H. AM) J AS. PARKER. 



-*c> 



LECTUKE I. 



T^HE present war in America may be regarded from 
two ])oints of view — one external, the other internal. 
As foreigners, we may inquire how it affects, or may 
affect hereafter, the rights and obligations — I must not 
here add, the interests — of our own and other foreign 
comitries, and their established relations with the United 
States. This is the point of view proper to an English 
or Ereneh statesman ; this inquiry, up to a certain point, 
it has already been the duty of the chief European 
governments to make ; and it will be necessary for them 
to pursue it further, unless the course of events should 
take a different turn. So great and massive a structure 
as the American Commonwealth, though seated on a 
remote continent, and separated from ours by its tra- 
ditional policy of isolation as well as by an immense 
ocean, cannot fall asunder without sending a wave to 
break upon the shores of Europe, nor without raising 
a cloud of (piestions troublesome enough to exact from 
those who have to deal with them much circumspection 
and care. On the other hand, we may in imagination 
place ourselves within that circle of fire which is con- 
suming the gains of a most industrious, and the splendid 
hopes of a most restless, and ambitious people. In 
America itself, and among Americans, the revolution, 
should it run its course, will give rise to some (piestions 
strictly international, and to others of a class commonly 
handled by international jurists, though more properly 
belonging to public or constitutional law. The nature 

B 2 



6 

entitled to treat both the contending parties as bel- 
lif/crents — that is, as armed with the exceptional rights, 
and subject to the conventional restraints, which inter- 
national law bestows and imposes on independent 
powers at war with one another. This principle, we 
all know, has been acted on by the British and French 
Governments, and is in full operation. 

8eco7idly, that when a revolted province or colony has 
succeeded in establishing its independence, and has ac- 
quired an organization sufficient for the discharge of 
ordinary international duties, foreign nations are entitled 
to recognise it as independent, though unacknowledged 
as such by the parent State. The time has not come, 
and perhaps may not come at all, for the practical ap- 
plication of this principle to the so-called Confederate 
States ; but the consideration of it, under existing cir- 
cumstances, can hardly be deemed premature. 

I Avill advert hereafter to the additions and qualifica- 
tions with which these propositions have been sometimes 
encumbered. They are true as they stand, without ad- 
dition or qualification. 

You will observe that these are two distinct proposi- 
tions, each applying to a distinct state of circumstances. 
The recognition of belligerency is quite distinct from 
that of independence. The one is provisional, the other 
definitive. The one concedes the exercise of certain 
limited privileges, which must expire with the termina- 
tion of the war ; the other acknowledges the recipient 
as entitled to all the ordinary rights, and subject to the 
responsibilities, which belong to a sovereign member of 
the family of nations. Each consists in applying to cer- 
tain facts certain considerations of equity and conveni- 
ence; but the facts are different, and the considerations, 
though nearly allied, are not the same. Lastly, the one 



iiiny, or may not, be followed by the other. A revolted 
})roviiice may be recognised as a belligerent, and yet 
may never achieve independence ; or may be recognised 
as independent by powers which never accorded to it 
belligerent rights while the contest was undecided. 

I. If we ask on what principle it is that this ])ro- 
visional recognition, which undoubtedly conveys some 
material advantages, may be granted to the rebel without 
just offence to the sovereign, we shall find the question 
variously answered. According to some, it is due as of 
right to any body of people enabled by their numbers 
and organization to carry on regular warfare. Don Jose 
Maria de Pando, an able Spanish publicist, who was 
born in Peru, and was for a time in the public service 
of that Eepublic after the battle of Ayacucho, is, naturally 
enough, of this opinion''. Others insist wholly on rea- 
sons of humanity and convenience. Both grounds are 
put, neatly and forcibly, in a well-known despatch of 
Mr. Canning's, written in answer to the remonstrances 
of the Turkish Government during the Greek war : — 

" The character of belligerency is not so much a principle 
as a fact ; a certain degree of force and consistency acquired 
by any mass of population engaged in war entitles that popu- 
lation to be treated as a belligerent, and even if their title 
were questionable, renders it tiie interest, well understood, of 
all civilized nations so to treat them. For what is the alter- 
native ? A power or community (whichever it may be called) 
which is at war with another, and which covers the sea with 
its cruisers, must either be acknowledged as a belligerent or 
treated as a pirate. The description of ' rebel,' under Avhich 
alone the Porte was willing to consider the Greeks, was not 
one which could constitute a rule for the conduct of foreign 

'' Pando, Elementos del Dcrcclio Inter nacional, p. 587, cd. 
1852. 



s 

nations, except either on a presumption that foreign nations 
have a right to take cognizance of the internal disturbances 
of the Turkish dominions, (a right which, if admitted, some 
nations might exercise in favour of the Greek side of the 
quarrel,) or on the pretension that in a dispute between a 
sovereign and a portion of his subjects all foreign Govern- 
ments are bound by an overruling obligation to make common 
cause with the sovereign. If these two equally untenable pro- 
positions were rejected, (as they necessarily must have been by 
the British Government,) there remained but the single option 
between belligerent and pirate. But what monstrous conse- 
quences would follow from treating as pirates a population of 
millions of souls, to whom by that very treatment the right 
would be conveyed, and on whom, according to the natural 
law of self-defence, the obligation would be imposed of making 
terrible reprisals ! Humanity required that a contest, marked 
in its outset by disgusting barbarities, should be brought 
within the regulated limits of civilized war." 

Let me try to make this a little clearer. By " belli- 
gerent rights" we mean in this discussion the rights of 
war as they affect bystanders or neutrals. The rights 
which usage and opinion permit to e?iemies as against 
each other, bystanders have it not in their power either 
to concede or to deny. We cannot admit, any more 
than we can reject, the claim of the Southerners to have 
their soldiers or privateersmen who may fall into the 
enemy's hands treated as prisoners of war, however 
clearly to our minds prudence and humanity are in its 
favour. But it rests with us to determine whether we 
will allow our merchantmen to be visited and searched 
at sea by Southern cruisers or privateers for despatches 
or contraband, and whether we would recognise (were 
such a thing to become possible) a blockade of a Northern 
port by a Southern squadron. It might not be abso- 
lutely impossible for us, if we chose, to refuse these pri- 



9 

vilegcs to the South, without treating the Southern pri- 
vateers as pirates. But what would be tlie consequence ? 
Clearly this, that we must either refuse them to the 
North also, or nmst become really, though not actively, 
participants in the war. To submit to the visit of a 
Northern cruiser and resist a Southern one — to re- 
cognise the blockade of New Orleaus, uot being pre- 
pared also to recognise a blockade of New York — 
would be tantamount to becoming the allies of the 
North and the enemies of the South. In a word, we 
must quarrel with either one or both — an alternative 
which we are certainly at liberty to decline. The right 
to accord this qualified and provisional recognition is 
the direct consequence, and necessary safeguard, of 
the right to be neutral in a strife in which we have 
no concern. 

The same argument may be put, slightly varied, in 
the form of an ai'f/iimentum ad hominem. Since without 
belligerents there can be no war, and without war there 
can be no rights of war, it is clear that a Government 
which, in dealing with foreign nations, denies to its 
adversaries the belHgerent character, renounces ijjsofacfo 
the privileges of that character for itself. Snch a govern- 
ment, then, confines itself, as against foreigners, to snch 
rights only as it could enforce in time of peace. Although, 
therefore, in the exercise of those rights it may close (un- 
less restrained by treaty) any of its own ports to foreign 
trade, subject to the conscqnences of its conduct in 
that respect, it cannot assume the belligerent right of 
blockaded Neither can it search, arrest, or detain any 
foreign vessel on the hiGfh seas. 

" These two operations differ in their pi'actical effect on foreign 
commerce. The British Parliament took llie first course in 1775, 
by passing the American Prohibitory Act. The Spanish Govern- 



10 

In truth, a refusal of these privileges, which are esta- 
blished because they have come to be considered iiidis- 

raeut, iu 1822, attempted to prohibit all intercourse with the 
ports of Spanish America, but it was resisted (very justly under 
the circumstances) by England, and denounced by the United 
States as "an outrage on the rights of neutral nations ;" and to 
combine the proMUtion (which assumed that these ports were 
actually subject to Spain) with a hlocTcacle (which assumed the 
reverse) was affirmed by the latter Government to be absurd. 
Very lately it has insisted, against that of the Two Sicilies, 
that a nation cannot blockade its own ports. Mr. Lincoln's 
Proclamation of April 19, 1861, announced a blockade of all 
the ports in seven States, (afterwards extended to nine,) " in 
pursuance" — I take these words from the New York Herald — 
"of the laws of the United States and the law of nations." The 
Government of "Washington cannot be acquitted, I think, of 
having pushed to an extravagant length, in this war, the doc- 
trine of a helium mixtum, on whicli, in 1858, the Neapolitan Prize 
Commission condemned tlie " Cagliari." Little need be said, how- 
ever, on this head. A sovereign may undoubtedly declare, ex- 
pressly or virtually, that a state of war exists between himself 
and his revolted subjects, without foregoing his claim to their 
allegiance. After such a declaration, unless there were strong 
reason to consider it illusory, foreign nations would, as a matter 
of course, concede to him, and to his antagonists, the exercise of 
ordinary belligerent rights — as they might have done without 
a declaration, upon simjile proof of the existence of a war. If he 
should afterwards, during the contest, hang his prisoners, while 
treating captured property as prize, his conduct would not only 
be barbarous and unwise, but it would throw doubt upon the 
honajlxles of his declaration, and might raise questions as to the 
legal effect of sentences pronounced in his prize-courts. If, on 
the other hand, he should persist in treating his measures of hos- 
tility as mere measures of repression or restriction — as exertions 
of civil authority, and not as acts of war — (sending his captures, 
as in that case he must, before courts of municipal, not of inter- 
national law) — he would thereby preclude himself, as against 
foreigners, from claiming belligerent rights ; and the question 
might arise whether foi'cigncrs were bound to submit to restric- 
tions excluding tliem from ports and places not in his possession. 



11 

pcnsablc for the effectual prosecution of hostilities, would 
never be tolerated by any Power strong enough to resent 
it. No Government with arms in its hands, whatever its 
character or origin, would tamely submit to see its 
blockades set at nought, and its plans frustrated by the 
conveyance to the enemy, under the very guns of its 
own fleet, of despatches, troops, and munitions of war. 
Such a refusal would speedily be followed by hostile 
collisions on every sea, and the refusing nation would 
soon find itself engaged, against its will, in irregular 
warfare with those against whom it had no cause of 
quarrel. 

These considerations shew conclusively that for the 
concession of belhgerent rights there is but one neces- 
sary, as there is but one sufficient, justification — the ex- 
istence of war. Wherever the state of war exists, be 
the parties waging it who or what they may, it is the 
right of all those who are not concerned in it to allow, 
while keeping themselves aloof, to both sides indiffer- 
ently all the privileges which are accorded to belligerent 
sovereign states by the law of nations. 

I say, wherever war exists. What, then, is meant by 
war? Like many terms of international law, it is in- 
capable of precise definition. Publicists, from Grotius 
downwards, have supplied us with attempts more or less 
unsuccessful. It is clear, however, that it involves the 
notions, first, of a contest in which violence is em- 
ployed ; secondly, of independent sovereignty in each 
belligerent, or of an amount of force and organization, on 

But whiclievcr course lie may tliink fit to adopt, tlie riglits aud 
obligations of foreign nations, in all transactions which may arise 
out of the contest, must be either such as belong to a state of 
peace, or such as belong to a state of war. International law, 
strictly speaking, knows nothing of " mixed" wars. 



12 

both sides, sufficient to adiiiit of a sustained struggle. 
A street riot is not a war, nor a sedition suppressed 
before it gains head, though a petty repubUc which 
musters only a few companies of militia may carry < n 
as regular a war as the Emperor of all the Russias. 
Every one would say that there was an insurrection 
at Vienna in 1848, and a civil war in Hungary in 1849. 
It would be trifling with language to dignify by that 
name the rebellion of which Massachusetts was the 
scene in 1786, and it would be equally trifling with 
language to withhold it from the present contest in 
America'^ But the amount of force and organization 
which will satisfy the word cannot be measured by any 
definite standard or expressed in precise terms. 

The clearest authorities on this subject ai"e American 
authorities. I shall refer hereafter to the course pur- 
sued by the United States in the contest between Spain 
and her American colonies ; it is enough here to say 
that the Government of Washington declared itself 
neutral, and the courts of law steadily pushed this de- 
claration to its legitimate consequences. Thus it was 
decided again and again that captures made by Spanish- 
American cruisers were to be regarded as lawful, unless 
the capturing vessel had been fitted out in a port of the 
United States, and in violation of their neutrality^. " All 

^ It has lately been decided, after argument, by a Prize Court iu 
the Uuited States, that a state of war exists which justifies the 
coufiscatiou of a British ship captured in the attempt to run 
a blockade. The absurd idea of attempting to collect duties at 
sea, which would have immediately involved the Union in a war 
with England and France, has been tacitly abandoned. It is 
astonishing that it should ever have found its way into an Act 
of Congress. 

*■ The " Santissima Trinidad," Wheaton's Reiwrts, vii. 283; 
the United States v. Palmer, lb. iii. 610 ; the " Divina Pastora," 



13 

captures made by each," said ]\Ir. Justice Story, in the 
case of the " Sautissiiua Trinidad," " must be considered 
as having the same vaUdity, and all the immunities 
which may be claimed by public ships in our ports under 

lb. iv. o2 ; the '' Nuustra Seuora de la Caridad," lb. 502 ; the 
"Estrella," lb. 307; the "Alired,"' Dallisous H., iii. ; Talbot 
V. Jauson, Dal!,, iii. 133. See also Whcaton's Elements, (by 
Lawrence.) p. 32. lu supporting the clanii of Paul Joues's 
representatives against Denmark, Mr. AVheatou argued that 
Denmark was not only entitled, but bound to accord belligerent 
rights iu 1779 to the United States, which she had not then 
recognised, and therefore to make compeusatiou for prizes which 
had been carried into her ports, and by her restored to their 
British owners. And this ground was sustained, I believe, by 
Mr. Adams, when Secretary of State, and a few years ago by the 
present United States' Secretary at War, Mr. Cameron, in a re- 
port to the Senate — {Speech of the Hon. Elisha li. Potter, in the 
Senate of Rhode Island, upon the Resolution in Support of the 
Union; Providence, 1861). As Mr. Potter's speech was made 
in introducing a resolution which pledged the State of Rhode 
Island " and its entire resources" to the President of the United 
Stati.s, tor the preservation of the Union, I may be permitted 
to make two further quotations from it. " Texas declared herself 
independent of Mexico in March, 1830, and within six mouths 
after her flag appeared in New York city ; and when the Mexican 
JNIinister remonstrated, our Government answered that in the 
previous civil wars between Spain and her colonies ' it had never 
been held necessary, as a preliminary to the extension of the 
rights of hospitality to either, that the chances of war should 
be balanced, and the probability of eventual success determined. 
For this purpose it had been deemed sufficient that tlie party 
bad actually declared its independence, and at the time was 
actually maintaining it." ..." When civil war breaks the bonds 
of society and of government, or at least suspends their force and 
eflect, it gives birth in the nation to two independent parties, 
who regard each other as enemies, and acknowledge no co»nmon 
judge. It is of necessity, therefore, that these two parties should 
be considered by foreign states as two distinct and independent 
nations." — Extract front Report of Committee of United States' 
House of Representatives on Forei<jn Relations, March 19, 1822. 



14 

the law of nations must be considered as equally the 
right of each." Each was alike entitled to "asylum, 
hospitality, and intercourse," except so far as special 
privileges might have been secured to Spain by pre- 
existing treaties. A commission under the seal of one 
of the new Governments was conclusive proof that the 
ship furnished with it was a public ship, (though the 
seal could not be allowed to prove itself,) and, in the 
absence of a commission, any evidence would do which 
would have been sufficient in the case of an acknow- 
ledged State. Nor was it an argument for restitution 
that the capturing ship was American-built, and origi- 
nally American- owned, and (like the " Bermuda") had 
been armed, sent out, and sold for the very purpose of 
being employed in the w^ar. "There is nothing," said 
the same eminent judge in the same case, " there is 
nothing in our laws, or in the law of nations, that for- 
bids our citizens from sending armed vessels as well as 
munitions of war to foreign ports for sale. It is a com- 
mercial adventure which no nation is bound to pro- 
hibit, and which only exposes the persons engaged in 
it to the penalty of confiscation V "It remains to be 
seen," observes Pando, after referring to some of these 
cases, " whether the Union will approve these princi- 
ples, in case they should hereafter be adopted by foreign 

'' See on this poiafc Phillimore's Commentaries, iii. 323. Sir J. 
Mackintosh, in his speech against the Foreign Enlistment Act, 
lOtli June, 1819, takes notice that it does not prohibit British 
subjects from supplying transports. K'or was it designed to pre- 
vent the ships of the belligerents from obtaining provisions in 
British ports, but only " from shipping warlike stores, such as 
guns, and other things obviously and manifestly intended for no 
other purpose than war." (Speech of the Attorney General, 
13th May, 1819.) 



15 

Powers upon a civil war arising between the racnibers 
of that Confederation^." 

It is a question at present of no practical moment 
whether Mr. Wheaton and other writers of respectable 
anthority are right in affirming, with Vattel, that foreign 
powers are not bound to be neutral spectators of a civil 
war, but may if they please espouse that cause which 
they think just. Mr. Canning, as we have seen, de- 
clared it an untenable proposition, which the British 
Government must necessarily reject, that foreign na- 
tions had a rin;ht to take cosrnizance of the internal 
disturbances of the Turkish empire, and this at a tune 
\vhen he had recognised to the fullest extent the belli- 
gerent rights of the Greeks ; an opinion not really belied 
by the subsequent intervention of Navarino. For reasons 
stated in my last public Lecture, I hold that Mr. Canning 
was right in principle and Vattel wrong, and that, in 
determining to leave to the Americans the settlement of 
their internal differences, at the least until they shall 
have clearly ceased to be mere internal differences, (a 
qualification which may in course of time become mate- 
rial,) the Governments of Great Britain and France have 
done only what they were bound to do — bound not by 
prudence alone, but by a due respect for the freedom 
and independence of the American people. But this is 
a question of a different order, which rises out of the 
sphere of positive international law into the higher re- 
gions of international morality. Between a war under- 
taken by us as allies of either belligerent against the 
other, and a course of conduct which would justify either 
belligerent in declaring war against us, there is a dis- 
tinction analoo;ous to that between an unconstitutional 
act and an illegal one. 

s p. 586. 



IG 

II. The second proposition, that independence ac- 
tually achieved may lawfully be recognised by foreign 
nations, is in principle still clearer than the first. 

I have just spoken of this quarrel as an internal or 
domestic quarrel. They think and speak otherwise, we 
all know, south of the Potomac ; and should the Con- 
federate States succeed in establishing their independ- 
ence, they will have been independent, in the contem- 
plation of their own law, from the date of their secession. 
But foreign States cannot anticipate the decision of 
a doubtful contest. So far as it is necessary for them 
to act on one view or the other, they must consider the 
old state of thino-s as subsistinoj until the establ'shment 
of a new one, and the Americans as one people till it is 
ascertained that they have become two. So long we are 
bound to wait, but no longer. 

Sovereignty, speaking accurately, is a matter of fact. 
He who rules and is obeyed, not being himself subject 
to a superior, is sovereign ; he who is not obeyed, or 
is subject to a superior, is not sovereign. The inter- 
national jurist, when he speaks of the rights of sove- 
reignty or sovereign rights, means the rights which under 
his code attach themselves to the fact of sovereignty. 
They are incidents which belong to the actual possession 
of sovereign power, are acquired with it, and are lost 
with it. The claim to he sovereign, if it exist any- 
where divorced from actual possession, is a claim not 
created nor guaranteed by the law of nations, which re- 
gards States as units, and is as foreign to disputes 
between sovereign and subject as to the disputes of 
individual citizens with each other, — as foreign as the 
law of this University is to the internal administration of 
a College. Nor could it ever be wrested to such pur- 
poses without a perversion of its essential character, nor 



17 

■without speedily becoming an engine of the most intoler- 
able oppression. It has no standards, no principles, no 
remedies, no authority for the decision of such cpies- 
tions ; it will be no judge of them, and dismisses the 
litigants from its judgment-seat. The logical con- 
sequence of these positions is that which I have just 
laid down. In recognising the possession of sovereignty, 
however acquired, as a title to the enjoyment of sove- 
reign rights, in refusing to recognise those rights where 
they have ceased to be clothed with possession, we only 
follow an established principle of international law. 

This reasonins:, if it be ridit, is of course fatal to 
a qualification which some eminent German writers^, 
in deference to the influences or opinions reigning 
around them, have attempted, but in a hesitating way 
and with some manifest misgivings, to engraft upon 
the rule. A new State may be recognised, they say, 
provided its possession of independence be not a tortious 
possession — be not illegally acquired (says Martens) by 
a " manifestly unjust revolt." The notion is borrowed 
from the civil law, in which it has a meaning, and 
interpolated into another code where it has none. Who 
is to determine, and by what standard, whether the 
possession be tortious, the revolt unjust? A rebellion 
in the Austrian empire attacks the law of that empire ; 
a rebellion in the United States attacks the law of the 
United States ; rebellion anywhere may be morally 
criminal, or it may not : but in the view of the law 
of nations rebellion is neither right nor wrong, law- 
ful nor unlawful ; it is simply a matter with which 
that law has nothing to do. False, however, as this 
qualification clearly is, and virtually destructive of the 

^ Martens, Precis, § 80 ; Kliibcr, IJwojmhcJie VvJJccrrccht, 
§ 23. See Ileffter, Europ. Vdllc, § 23. 

C 



18 

rule to which it is appended, it is so essentially attrac- 
tive to the mind of a German jurist, and so agreeable 
to the lingering traditions of the Holy Alliance, that it 
cannot even now be deemed entirely exploded, and 
would probably be upheld at St. Petersburg as well 
as at Vienna. 

In practice, and in the writings of publicists, it is 
usual to evade the admission that independence confers 
a ri(jlit to be recognised, as well as a capacifi/ for recog- 
nition. In principle it clearly does so. No independent 
State is bound to submit patiently, I do not say to the 
refusal of ordinary diplomatic intercourse, but to the 
substantial injury as well as indignity of having its flag, 
its officers, and its very existence ignored by the exe- 
cutive of other nations, and of being refused admis- 
sion, when it has occasion to sue in their courts of law. 
It is an established maxim, however, that the time 
and manner of recognition are questions of prudence 
and policy for the recognising State ; and prudence and 
policy have commonly prevented the claim from being 
very hotly urged on the one side, as well as from 
being very stiffly resisted on the other. 

I will not trouble you with the distinction which 
has been drawn between recognitions " virtual " and 
"formal," nor with the different meanings ascribed to 
those words by different authorities, (by Sir J. Mackin- 
tosh, for instance, and Dr. PhiUimore,) nor is it, in fact, 
a distinction of much importance. To " recognise " a 
new State is to treat it by some public act as indepen- 
dent ; and provided this be the effect of the act, there 
is nothing essential in its external form. Such ques- 
tions as this belong to the closing scenes of the period 
of struggle and transition, when consolidation is far ad- 
vanced, and the trial of strength is nearly over. During 



19 

the whole of that period foreign governments are com- 
pelled to resort to shifts and ex})edients, in order, whi'st 
protecting as well as they can the interests of their own 
subjects, to avoid those consequences which usually at- 
tend the slightest interference in a family quarrel. The 
concession of belligerent rights is one of these shifts, 
and a very anomalous one it is. The government of 
the Confederate States of North America is a govern- 
ment unknown to Dowming-street, and which \vould 
not be permitted to sue in AVestminster Hall. But it 
is not absolutely unknown in Downing-street, or at the 
Admiralty, that there is a body of people in America 
who are carrying on a war, and that they have issued 
commissions, and have a flag with (we will say) 6nly 
seven stars. Instructions, we may suppose, go out ac- 
cordingly to the West Indian station to permit the exercise 
of belligerent privileges to vessels carrying this commis- 
sion, and flying this flag with seven stars, — not as being 
the commission and flag of an independent government, 
but simply as marks of identification. The same body 
of people, by-and-bye, may send an agent, informally 
accredited, to push their interests in London. lie is 
but a private gentleman, it is true, yet he may leave 
his card at the Foreign Office, and possibly find his way 
upstairs. Ships begin to drop in at West Indian ports, 
bearing the same seven stars ; their papers are some- 
what irregular, they do not appear to have sailed with a 
proper clearance, and they are unaccountably shy < f the 
United States' consul, but the governor or other local 
official overlooks (having no instructions to see them) 
these little peculiarities ; to him they are United States' 
ships, in spite of their seven stars, since they come from 
Charleston or New Orleans : he is hap])y to receive, but 
much happier to get rid of them, if it can be done with- 

c 2 



20 

out disputes with tlie American Consulate. By dint of 
a little tact and civility, of some opportune infirmities 
of sight and hearing, and of judicious connivance on all 
sides, such a state of things as I have imagined may 
last for some time without very great inconvenience ; 
especially if, from the maintenance of a blockade or from 
any other cause, there be little intercourse with the re- 
volted people. But it is too troublesome (as we should 
see if we followed it into details) to last for ever. Press- 
ing applications begin to arrive for the appointment and 
reception of consuls. They are refused — renewed — and 
at last granted. This has been called a virtual recog- 
nition. A consul-general, said the American Secretary 
of State in 1818, to the agent from Buenos Ayres, "can- 
not be received without recognising the authority from 
which his commission or credentials proceed as a sove- 
reign and independent Power." Logically this is true; 
practically, the appointment of consuls does not carry 
with it, nor draw immediately after it, a complete re- 
cognition. A consul being an officer w^ith no political 
character, concerned only with the regulation of com- 
merce, and very necessary for that purpose, it has still 
been found possible, as we shall see hereafter, to delay 
for years afterwards that final and irrevocable recog- 
nition which is conveyed in the interchange of public 
ministers and the negotiation of a treaty. 

III. A cursory review of the leading cases in which 
these questions have arisen since the Peace of Westphalia 
Avill enable us to form some idea how these principles 
have been applied, and how far they are estabhshed by 
the practice of nations. 

When the North American colonies of Great Britain 
threw off their allegiance to the mother-country, two 
centuries had elapsed since the revolt of the Netherlands, 



21 

and nearly a century and a half since Portugal, having 
emancipated herself from the tyranny of Spain, had been 
welcomed vA'ith open arms by the English Government 
of the day. The States of Europe had in that interval 
become more compact, their organization more effective 
and more closely knit, their boundaries more settled, the 
authority of princes and governments more firmly esta- 
blished, the interests which they have in common more 
clearly understood, as well as the protection which those 
interests derive from the established courtesies of inter- 
national intercourse. On the other hand, liberal theo- 
ries of government had become the reigning fashion ; it 
was the age of Rousseau, the Social Compact, and the 
Rights of Man. Grotius had been practically super- 
seded by Vattel. Great Britain, elevated by the war of 
1750 to a maritime supremacy which she used as men 
are too apt to use unaccustomed and uncontrolled power, 
had become what she has ever since continued to be, an 
object of jealousy to every maritime State in Europe, but 
especially to France, smarting under her recent reverses, 
and panting for an opportunity of repairing them. Such 
an opportunity was offered by the American rebellion, 
and M. de Vergennes threw himself eagerly into the old 
policy of Richelieu and Mazarin, the policy which had 
supported the Protestant states of the Empire against the 
Emperor, the Dutch, the Catalans, and Portugal against 
Spain, and had fostered in Scotland and in'England the 
seeds of civil war. The discussion — or rather the alter- 
cation, for it consisted chiefly of a lively interchange of 
reproaches and recriminations — which ensued between 
the French and English Governments, may be read in the 
Causes Cclebres dii Droit dcs Gens ; and it is instructive 
as shewing the degree of acceptance which the principles 
I have stated had then obtained, and as the earliest in- 



22 

stance of a practical appeal to them after the law of 
nations liad become a science. The doctrines advanced 
at that time by the French minister differed in fact very 
little from those maintained fifty years afterwards by 
Mackintosh and Canning. His master pretended not, 
he said, to interfere as judge or arbiter in a quarrel be- 
tween a neighbouring state and her own dependencies. 
He was under no obligation to treat the latter as rebels, 
to close his ports to them, or to deny them, what a due 
regard to the interests of his own subjects commanded 
him to grant, that free intercourse and those common 
advantages which France conceded to all other civilized 
nations. He had observed, whilst the result of the con- 
test continued to be doubtful, a strict and scrupulous 
neutrality. All that it depended on him to do in order 
to prevent the exportation to America of arms and 
munitions of war he had scrupulously and faithfully 
done. Commerce, said M. de Vergennes, in time of 
war may be divided into two branches, the one consist- 
ing of articles contraband of war, the other of all articles 
not contraband. With respect to the latter class, the 
subjects of every neutral power have a right to trade in 
them with each or either belligerent as freely as in time 
of peace ; the former are liable to be seized and confis- 
cated by the exercise of the ordinary belhgerent right of 
visitation and search, as regulated, in default of special 
treaties, by international usage. But neither treaties 
nor usage make the exportation of contraband a breach 
of neutrality ; they only condemn the individual spe- 
culator to the penalty of confiscation. As to the United 
States, he argued, there were only two points of view 
under which it was possible to consider them. They 
were rebels, or they were belligerents ; they were sub- 
jects of Great Britain, or they were an independent 



23 

people. On the first hypothesis, Great Britain had an 
unquestionable right to enforce against them her pro- 
hibitory laws ; but it was equally clear that she had no 
right whatever to enforce those laws against the sub- 
jects of other nations, except within her own territorial 
waters, — in other words, within cannon-shot of the Ame- 
rican shore. On the second, she had the rights of a 
belligerent and no more ; and the obligations of France 
as a neutral power were defined by the Treaty of Utrecht, 
which, without binding either party to prohibit the 
export of contraband, simply declared that vessels so 
freighted might be captured and condemned as good 
prize. The King had, in fact, exceeded these obli- 
gations : he had publicly prohibited the traffic ; and had 
done, to prevent it, all that he possibly could without 
violating the liberties of his subjects, and subjecting 
their commerce to a species of inquisition not prac- 
tised, said the indignant statesman, in any corner of 
the universe, and which the English themselves would 
have been the first to condemn. Further, adhering re- 
ligiously to the stipulations of the commercial Treaty 
of Utrecht, (a treaty to which the English Parliament 
had refused to give effect,) he had refused permission to 
American privateers to equip or to sell their prizes in his 
ports, or to remain there beyond the time limited by 
that treaty. Such, and so irreproachable, had been the 
conduct of France throughout the war; when at last, 
after patiently enduring the most groundless complaints 
and repeated outrages, menaced by warlike preparations, 
and convinced that the efforts of Great Britain had 
become hopeless and the independence of the colonics 
practically secure, she listened to the solicitations of their 
deputies, what had been her reply? "The King an- 
swered that he could very well regard the independence 



24 

of the colonies as existing, but that it appertained not 
to him to recognise it, because he had not the right to 
act as judge in the matter ; neither could he guarantee 
it, because he had no intention of making war in its de- 
fence : he refused therefore to enter into an offensive alli- 
ance, and consented only to a treaty of friendship and 
commerce. But as it was more than possible that the 
Court of London had formed the design of attacking 
France, His Majesty deemed it right to conclude with 
the United States an eventual and purely defensive alli- 
ance," which w^as kept secret because it was only to take 
effect on a future contingency. Was this proceeding at 
variance with the law and practice of nations? Could 
England, which had so often changed her dynasty, contend 
that the rights acquired by a legitimate possession were 
indefeasible by time or circumstances ? Could she deny 
that her own possession w^as in fact lost, and had never 
been recovered ? or could she avoid the consequences of 
this fact by the futile plea that the possession acquired 
by the Americans was unlawful ? 

" Que les Etats-Unis aient eu ou non le droit d'abjurer la 
souverainete de I'Angleterre, qvie la possession, ou ils sont 
de leur independance, soit legitime ou non ; ce n'est point 
a la France a discuter ces deux questions. Le roi n'est point 
le juge des querelles domestiques de I'Angleterre. Ni le droit 
des gens, ni les traites, ni la morale, ni la politique ne lui 
imposent I'obligation d'etre le gardien de la fidelite que les 
sujets anglais peuvent devoir a leur souverain. II suffit pour 
la justification de S. M., que les colonies, qui ferment une 
ration considerable tant par le nombre de leurs habitants 
que par I'etendue de lours domaines, aient etabli leur inde- 
pendance, non-seuleraent par un acte solennel, mais aussi par 
le fait, et qu'elles I'aient maintenue centre les efforts de leur 
mere-patrie. Telle etait en effet la position des Etats-Unis, 
lorsque le roi a commence d negocier avec eux. S. M. avait 



25 

uiie cutiere Hberto do les regarder on commo indepcndants 
oil commc sujets do la Graude-Bretagno. Elle a choisi le 
premier parti, parce que sa surete, I'interet de ses pcuples, la 
politique invariable et surtout les projots secrets de la cour 
de Londres, lui en imposaiont imperieusement I'obligation. 
On demande, s'il est un souverain, qui, dans la meme posi- 
tion que S. M., n'aurait pas imite son exemple?" — [Causes 
Celebrcs, p. 240.) 

Finally, the French Government stated its case in 
four propositions : — 

" /. Que k droit des gens, la politique et V exemple meme de 
V Anglcterre autorisaient le rol a regarder les Americains comme 
indq^endanfs de fait, des I'ejioque du 4 Juillet 1776; et qu'il 
a pu lefaire a, plus forte raison, d celle du 6 Fevrier 1778. 

" II. Qu'en les regardant comme tels, et en formant des liai- 
sons avec eux sous cetfe qualification, il n'a viole ni les traites ni 
les droits des souverains. 

"III. Qu'oi traitant avec eux, il ne s'esf point rendu cou- 
pahle de perfidie. 

"IV. Que le traite conelu arec le congres, n'est pas tine 
offense pour V Angleterre ; que par consequent Vacte, par lequel, 
il a ete denonce a cette puissance, n'efait point une declaration 
de guerre \"—(C. C, pp. 244, 245.) 

The English Government, in a celebrated State-paper 
composed by the historian Gibbon^, justified its resort to 
hostihties, not by demurring to the principles laid down 
by M. de Vergenncs, but by traversing his averments 
of fact. It affirmed that the supplies of arms, ammuni- 

' Expose des motifs de la conduite du roi de France relativement 
a r Angleterre, eu 1779; Observations de la Cour de Versailles 
sur le Memoire Justificatif de la Cour de Londres. Both in Mar- 
tens, C. C, vol. iii. ed. 1859. 

J The Memoire Justificatif was written in French by Gibbon, 
at the request of Lord Weymouth, then Secretary of State. He 
was furiiislied with the correspondence of Lord Stormont, and 
"spoke," he says, "as a hiwyer from his brief." Gibbon's Misc. 
Works, i. 156. 



26 

tion, and trained officers which had been sent from 
France to America, — " succours so considerable, so pub- 
lic, so long sustained," — could not be regarded as the 
mere speculations of private enterprise, and that the 
Government of France was responsible for acts of hos- 
tility which would have been impossible without its en- 
couragement and connivance ; that the French ports had 
been suffered to become nests of privateers, commis- 
sioned by the American delegates at Paris and else- 
where ; and that the signature of the treaty of alliance 
was tantamount to a declaration of war. The discussion 
of the abstract proposition that foreign Powers may law- 
fully recognise as a fact the fact of an acquired indepen- 
dence, is with some dexterity avoided, and the publicist 
ventures no nearer to a denial of it than the cautious 
affirmation that if a revolted people seeks the alliance of 
foreigners in order to support its pretended independence, 
then to accept its overtures, ratify its usurpations, and 
recognise it as independent, is to concede the legitimacy 
of its title. The Court of Versailles is commended for 
having, at the commencement of the war, made the 
" wise and modest" declaration that it Avould be no 
judge of the merits of the quarrel, and blamed only for 
having subsequently thrown that principle aside, and 
adopted in its stead the " novel, false, and dangerous 
maxim" that a foreign prince may assume jurisdiction 
in disputes which arise within the bosom of a sovereign 
and independent State. 

The question of fact, which alone was really in issue 
between the two Governments, is now of no importance, 
and I shall refrain from entering into it, especially as it 
w^as long ago placed beyond the reach of discussion by 
some passages which I am about to read to you from 
the "Memoirs of Franklin," composed by his grandson, 



27 

William Temple Franklin, who accompanied him to 
France, acted during the whole of his residence there as 
his secretary, and had access therefore to the best 
sources of information^. 

The conduct of France in this affair was, without 
doubt, false and unscrupulous in the highest degree; 
but this does not destroy the value of her State-papers. 
Men's acts, not their words, shew what they are ; their 
words, not their acts, shew what they would fain appear 
to be, and what they conceive to be the opinions current 
around them. Indeed, the greater the discrepancy and 
the more unblushing the pretence, the clearer in some 
sort is the testimony which the pretender bears against 
himself. In the French manifesto we see what at that 
time was the current opinion of Europe on this subject, 
and the rule to which, externally, the French Court was 
desirous to conform ; while this rule and opinion are con- 
firmed by the fact that the English Government, though 
interested in disputing them, did not seriously attempt 
to do so, but laid the whole stress of its argument on 
other grounds. 

'' See Note A at the end of this Lecture. " The commissions 
issued by the diplomatic agents of the United States in France 
during our revolutionary war were granted with the knowledge 
and consent of the French Government." (Official Report of 
Secretary Adams, transmitted to Congress by President Monroe, 
Jan. 29, 1818.) See also the letter of M. de Vergennes to the 
King, May 2, 1776, (two months before the Declaration of In. 
dependence,) applying for 1,000,000 fr. '■'pour le service des co- 
lonies Anf/Iaises," and explaining the precautions adopted to se- 
cure secrecy and give it the appeai'auce of a private transaction. 
Martens, C. C, iii. 149. " Cette piece importance," says M. de 
Flassan, gently, (Histoire de la DipJomatie Frangaise, vii. 151,) 
*' semble en contradiction avec les priiicipes moraux do M. de 
Vergennes." 



28 

The English Memoire, to which reference has been 
made, contained one prophetic sentence : — 

"Les ministres du roi Tres-Chretien s'apercevront peut- 
etre un jour, que I'ambition leur a fait oublier les interets et 
les droits de tous les souverains. L' approbation que la cour 
de Versailles vient de donner a la revolte des colonies an- 
glaises, ne lui permettrait pas de blamer le souleveraent de 
ses prop res sujets dans le Nouveau- Monde ou de eeux de 
I'Espagne, qui auraient des motifs bien plus puissants pour 
suivre le meme exemple, s'ils n'en etaient point detournes 
par la vue des calamites, dans lesquelles ces malheureuses 
colonies se sont precipitees." — (C. C, p. 216.) 

Within the compass of a short lifetime this prediction 
was substantially verified, and the French Court was 
found united with the Spanish in expostulating against 
the recognition by England of the revolted colonies of 
Spain. The revolt of the Spanish American colonies 
began in 1810, upon the dissolution of the Supreme 
Junta at Seville, the colonists refusing obedience to the 
phantom regency by which it was succeeded. In the 
long, confused story of bloody and desultory civil war 
which extends over the ensuing ten or twelve years, 
there is no event im})ortant enough to deserve a date. 
When Buenos Ay res, in 1816, threw off her nominal 
allegiance to the Spanish Crown, the royal authority had 
been nearly re-established in Venezuela, was dominant 
in Mexico, and undisturbed in Peru ; but the provinces 
of the Rio de la Plata were long before that time prac- 
tically independent, and secure, except from domestic 
dissensions. And Sir J. Mackintosh was able to affirm 
in 1824 that in a country whose Pacific shore was equal 
in length to the whole African coast from the Cape to 
Gibraltar, and where the Spanish language was spoken 
over a line of nearly 6,000 miles, Spain retained nothing 



29 

but a castle in Mexico, an island on the coast of Chili, 
and a small army in Peru. Upon the destruction of 
the Spanish monopoly a most active trade had sprung 
up, chiefly with Great Britain, and British capital was 
poured profusely into countries whose capabilities Avere 
estimated by their size, to feed public works and private 
speculations. On the restoration of Ferdinand VII., 
the question naturally arose how this state of things was 
to be dealt with. Encouraged perhaps by Mr. Dundas's 
despatch to Sir T. Picton in 1797, the colonists at 
the first outbreak of the revolt had turned their eyes 
towards this country, and Lord Liverpool, in a despatch 
to the British governor of Cura^oa, (June 29th, 1810,) 
had instructed him that, Spain remaining Spanish, " His 
Majesty's Government must discourage every step tend- 
ing to separate the colonics from the mother country in 
Europe," but Avould assist their emancipation should 
Spain become French. For a time, and for a short time, 
Spain was French. The mediation of England was 
afterwards solicited more than once by the Spanish 
Government, more than once offered, but never actually 
employed. The English Government, however, en- 
gaged by treaty in 1814 to observe a strict neutrality, 
which was enforced three years afterwards by a royal 
proclamation ; and as a more effectual security, the Fo- 
reign Enlistment Act now^ in force was introduced into 
the Statute-book, after a warm and not very creditable 
resistance from ^lackintosh and the Whigs^ A Navi- 
gation Act, passed in 1822, permitted the importation 
of articles, the produce of countries which had formerly 

' Tlie author of Outlines of Lie Bevolution in Spanish Ame- 
rica; htj a South American, London, 1817, complains tliat the 
agents sent to Loudon up to that time could not even obtain au 
interview. 



30 

belonged to Spain, in the ships of those countries, thereby 
virtually recognising their commercial flag. And in July 
of the same year Spain received from Lord Castlereagh, 
through her minister in London, an explicit warning — 

" That so large a portion of the world could not, without 
fundamentally disturbing the intercourse of civilized society, 
long continue without some recognised and established rela- 
tions ; and that the State which neither by its councils nor 
by its arms could effectually assert its own rights over its 
dependencies, so as to force obedience, and thus make it- 
self responsible for maintaining their relations with foreign 
Powers, must sooner or later be prepared to see those rela- 
tions establish themselves, from the overruling necessity of 
the case, under some other form." 

In the ensuing December, Lord Castlereagh having 
in the meanwhile been replaced by Mr. Canning, she 
was further informed that consuls would shortly be 
sent to certain specified places in Spanish America, 
for the protection of British trade ; and these consuls 
were actually despatched about the end of 1823, com- 
missioners being at the same time sent to Columbia 
and Mexico to inquire into and report upon the poli- 
tical situation of those countries. On the 1st Feb., 
1824, Mr. Canning read to all the Foreign Ministers 
in London a despatch addressed to Spain, in answer 
to a proposal which that Power had made to submit 
the question to a European Congress. "The British 
Government," said the despatch, " was decidedly of 
opinion that the recognition of such of the new States 
as had established, de facto, their separate political ex- 
istence, could not be much longer delayed." This an- 
nouncement was accompanied by a promise that, when 
Great Britain should determine to take her own course, 
Spain should receive an early intimation of it, and with 



31 

an offer to mediate between her and her colonies on the 
basis of their complete independence. The offer was 
refused, and Spain was then informed that "Ilis Ma- 
jesty would at his own time take such steps as he might 
think proper in respect of the States of Spanish America 
without further reference to the Court of IMadrid, but 
without any feeling of alienation from that Court, or of 
hostihty to the real interests of Spain." Six months 
afterwards this warning was acted upon, the British 
consul in Buenos Ayres being empowered to conclude 
a commercial treaty with that Government, provided it 
continued, when the despatches arrived, to afford the 
same reasonable prospect of stahilltij as it appeared by 
the reports received to do when the despatches were 
sent off; and within another six months similar powers 
and instructions were sent to Columbia and Mexico. 
In November, 1825, ministers plenipotentiary were ap- 
pointed to Columbia and Buenos Ayres, (the terms of 
the treaty with Mexico not being finally settled,) and 
ministers from those countries were received by the 
King"". 

This famous transaction, — made famous by the time 
over which it extended, the hetirtburnings it created, 
the discussions it underwent in State-papers, in Minis- 
terial conferences, and in Parliament, and more than all, 
perhaps, by the clear, forcible, and luminous exposition it 
received from two eloquent men. Sir J. Mackintosh and 
Mr. Canning, — was entangled throughout, at every step 
of its progress, in the complicated web of English and 
European politics, from which it is necessary to extricate 
it before it can be considered in its relation to inter- 

" This reception is particularly described in Stapleton's Poli- 
tical Life of Mr. Canning, from which the foregoing outline has 
been chiefly taken. 



32 

national hw. It has in fact three aspects, and three 
histories — it is a part of the political history of Eng- 
land during Lord Liverpool's administration ; a part of 
the political history of Europe during the same period ; 
and a part of the history of the law of nations. With 
the first of these — with the use made of the question 
by the Whig Opposition, the Petition of the London 
merchants, the debates in Parliament, the dissensions in 
the Cabinet, the reluctance and resistance of the King, 
we have nothing to do; and with the second we are 
concerned only so far as it helps to throw light upon the 
third. The motives which urged on the recognition may 
be divided into two kinds, the one direct and proper to 
the matter in hand, the other indirect and improper. 
As I have said before. Great Britain carried on with the 
Spanish American States a large trade and intercourse, 
a thing which she had a perfect right to do. Trade 
and intercourse, however, cannot be caiiied on for any 
length of time without the protection of some recog- 
nised and efficient authority. " All political communi- 
ties," wrote Mr. Canning to Zea Bermudez, the Spanish 
minister, — 

"All political communities are responsible to other poli- 
tical communities for their condvict ; that is, they are bound 
to perform the ordinary international duties, 'or to afford re- 
dress for any violation of the rights of others by their citizens 
or subjects. Now, either the mother- country must have con- 
tinued responsible for acts over which she could no longer 
exercise the shadow of a control ; or the inhabitants of those 
countries, whose independent political existence was in fact 
estabhshed, but to whom the acknowledgment of that inde- 
pendence was denied, must have been placed in a situation 
in which they were really irresponsible for all their actions, 
or were to be visited for such of those actions as might fur- 
nish ground for complaint to other nations with the punish- 



33 

ment due to pirates and outlaws. If the former of those 
alternatives, the total irresponsibility of unrecognised States, 
were too absurd to be acknowledged, and the latter too mon- 
strous to be applied for an indefinite length of time to a large 
portion of the habitable globe, no other clioice remained for 
Great Britain, or for any country having intercourse witli 
the Spanish American provinces, than to recognise in due 
time their political existence as States, and thus bring them 
within the pale of those rights and duties which civilized 
nations are bound mutually to respect, and entitled recipro- 
cally to claim from each other." 

Tlie direct and proper motive, then, was the indis- 
pensable necessity for some recognised and efficient 
authority, responsible for the redress of grievances and 
accessible through the usual diplomatic channels, to pro- 
tect the rights and discharge the duties of these young 
communities, — rights which flowed from their indepen- 
dence, duties which were the fruit of their legitimate 
intercourse with otlier nations. The motives which I 
take leave to call indirect and improper, sprnng out of 
the fluctuating and shifting politics of Europe. Whilst 
Spain was still in the grasp of Napoleon, the complete 
emancipation of her colonics would natnrally be a de- 
sirable object to the English Government. After the 
restoration of the Bourbons, and until it was clear that 
Si)ain was invincibly unreasonable, we desired a recon- 
ciliation. Pending the Congress of Verona, and whilst 
a French army, the instrument of the Iloly Alliance, 
was invading the country, it seemed ungenerous as well 
as unwise to take any step which might increase, even 
in semblance, her weakness and her embarrassments ; 
and this circumstance actually delayed for nearly a 
twelvemonth the despatch of consuls to the Spanish 
American ports ; and the final determination to recog- 
nise Columbia and Mexico was hastened by the refusal 

D 



34 

of the French Government, in December, 1824, of satis- 
factory explanations respecting its continued occupation 
of the Spanish fortresses. It was, and it was felt and 
intended to be, a blow to the system of Metternich, 
a final rupture with the Holy Alliance, and a counter- 
poise to the short-lived victories which absolutism had 
obtained in Europe. No passage of Mr. Canning's life 
better illustrates both his cleverness and his restless 
and ingenuous vanity, than the achievement which he 
describes as having " called a new world into existence 
to redress the balance of the old." Could the author 
of that sparkling gasconade have forecast what the New 
World, which he did not call into existence, w^ould be 
— could he have seen the Peru of 1861, and Spain 
herself admitted to take part with England and France 
in an expedition against Mexico, he would hardly have 
left such a boast to posterity. Yet, irregular and capri- 
cious, to say the least, as these motives were, they did 
not prevent the conduct of Great Britain in this matter 
from being marked by a deliberation and forbearance, 
a considerate and indulgent tenderness not only for the 
rights of Spain, but for her interests and feelings, her 
pride, obstinacy, and weakness, which to my mind form 
the chief feature in this history. 

The United States, like England, from the first de- 
clared themselves neutral. This is the burthen of every 
President's Message from 1817 to 1823, and we have 
seen how the declaration was understood and seconded 
by the Supreme Court. They preceded us in passing 
a Foreign Enlistment Act. They insisted at the same 
time on a stringent interpretation of the law of blockade. 
A blockade, to be valid, must be confined (they said) 
to particular ports, and not extend over a coast of several 
hundred miles, and it must be maintained by a stationary, 



35 

not a cruising squadron". But tlieir sympathies, natu- 
rally enough, were with the revolted colonies ; and be- 
tween their general attitude and that of England there 
was a broad and, as Mr. Rush expressed it, a funda- 
mental difference. The Buenos Ayres commercial flag, 
with those of the other provinces, was promi)tly admitted, 
notwithstanding the remonstrances of Spain. In 1818 
Mr. Adams begged to assure the agent of Buenos Ayres 
at Washinoton of his readiness to recogjuise its Govern- 
ment so soon as it could be done with advantage to the 
interests of South America, as well as of the United 
States. In the same year Mr. Rush, pursuant to his 
instructions, flatly declined, in an interview with Lord 
Castlereagh, of which the American has left us a circum- 
stantial account, to take part in promoting any settle- 
ment except on the one basis of independence. " The 
desire of my Government was, that the colonics should 

be absolutely emancipated from the parent State 

The policy of the United States could not have been 
different. They owed it to the actual position of the 
colonies, to their future destinies, to the cause of human 
liberty in the new hemisphere"." American consuls 
were sent thither some time before English ones ; and 
in 1823, two years before England, Mr. Monroe took 
the final step of a formal recognition. 

We may pass over as unimportant the case (^f Brazil, 
the peaceable separation of which was effected under 
British mediation in 1825, and we need not linger over 
a larger and more fertile subject of controversy, the 
Greek war. 

The character and circumstances of this war, and the 

" American State Papers, xi. 473, 475 ; President Monroe's 
Message, 1822. 

" Hush's Residence at the Court of London, pp. 184, 295. 

D 2 



36 

feelings it excited, were enough to overbear altogether 
the authority of rule and precedent. It seems to be 
a general law that in affairs in which the Porte is con- 
cerned no European Power can for any length of time 
be mistress of its own policy. I ought perhaps — though 
I am not sure of it — to say, no European Power but 
one. The ordinary embarrassments of a blind and in- 
triguing policy were increased, in this case, by a vague 
but impetuous sentiment of sympathy and indignation ; 
and there is no chapter of political history more obscure, 
perplexed, and misatisfactory, than that which ends with 
the nomination of a Bavarian schoolboy to the throne of 
Greece, and the leading parts in which were played by 
Russia, Austria, and Great Britain. The justification of- 
fered for the intervention of Navarino was, that on account 
of the protracted length of the struggle, the intolerable 
evils it occasioned to neutral nations, the horrible barba- 
rities perpetrated and threatened, it could no longer be 
regarded simply as an ordinary civil war. As a civil war, 
hoW'Cver, England had been content to regard it up to 
that time, and she had maintained a pretty strict neu- 
trality, whilst conceding to each party the common belli- 
gerent rights. She recognised, on the one hand, not- 
withstanding the expostulations of the Porte, blockades 
declared by the Greeks, (which France refused to do) ; 
whilst British officers, on the other, were recalled from 
serving in the Greek ranks ; and during the siege of 
Missolonghi two proclamations were issued, one resem- 
bling that which we have lately read, citing the Foreign 
Enlistment Act, and prohibiting all infractions of it ; the 
other forbidding for six months the export of munitions 
of war from any port in the United Kingdom. The one 
thing which the Government refused to do was to under- 
take a useless and hopeless struggle against public opi- 



37 

nion, by jorosecuting those who provided the insurgents 
Avith money. The Court of Common Pleas justly held 
these loans illegal ^, but it is not every illegal act which 
can or ought to be punished as a misdemeanour. 

Passing over rather more than twenty years, avc will 
take one other case, supplied by a kingdom which has 
since disappeared from the map of Europe. On Jan. 12, 
184S, an insurrection broke out in Sicily, and rapidly 
mastered the whole island, except the citadel of ]\Iessina. 
From the beginning of May till the end of August 
there was a suspension of arms. A powerful force was 
then despatched from Naples for the re-conquest of the 
island ; the town of Messina was bombarded and re- 
taken, and immediately afterwards Admiral Baudin in- 
duced Sir W. Parker to join him in stopping, by a 
menace of intervention, the progress of the Royal arms. 
This proceeding, which was excused rather than justified 
by the plea of humanity, led to an enforced cessation 
of hostilities, during which active but fruitless ex- 
ertions were made to effect an accommodation. It 
Avas not till the end of j\Iarch, 1849, that the two 
admirals abandoned their endeavours, and left General 
Filangieri free to pursue his conquests, which he did 
so effectually, that by April 22, within little more than 
three weeks, he was undisputed master of Sicily. 

The British Government of that day, like Lord Liver- 
pool in 1810, and Lord Castlereagh in 1818, — indeed, 
like every Government, of whatever colour, which has 
succeeded in its turn to the traditions of the Foreign 
Cffice,— desired to maintain, if possible, the existing state 
of territorial possession. Should that prove hopeless, 
they wished to prevent the spread of revolution and the 
overtln-ow of monarchical institutions, and in any cnse 

P De "Wiitz V. IleuJriks, 9 Moore'a C. F. Reports, 637. 



38 

to keep alive the influence of Great Britain, protect her 
interests, and preserve her poHtical connexions. To 
bring about a reconciliation between the king and his 
revolted subjects on such terras as would afford thera 
some adequate protection from oppression and mis- 
government, was the first aim of Lord Palmerston, and 
of the agents (including Lord Minto) by whom he was 
more busily than wisely seconded. Failing in that, he 
was ready to recognise any prince who might be invited 
to seat himself on the vacant throne. He was a little 
uneasy lest England should be outstripped by the French 
Republic in the good graces of the Sicilians, and he had 
a firm but mistaken conviction that the notion of a re- 
conquest was chimerical. This mistake, coupled with 
the anxiety to keep pace with France, and assisted 
perhaps by the importunities of Lord Normanby and 
Lord Minto, (who, partly to discourage republicanism, 
partly in order to secure for Great Britain such com- 
mercial advantages as might be expected from the friend- 
ship and gratitude of the Sicilians, repeatedly pressed 
for a prompt recognition of the insurgent government,) 
led to some acts which were certainly difficult to re- 
concile, I will not say with the law, but with the com» 
mon mutual courtesies of nations. 

The famous despatch to Mr. Abercromby, May 8, 
1848, which prematurely pledged this country to ac- 
knowledge as King of Sicily " at the proper time, and 
when he should be in possession of the throne," a prince 
who had not accepted, and in ftict never did accept, 
that illusory dignity, proceeded on the expressed as- 
sumption, that Ferdinand the Second was unable to 
subjugate his revolted province, and that the substi- 
tution of the Duke of Genoa was the next best arrange- 
ment for the general interests of Europe. On July 11, 



39 

the French and English squadrons, in obedience to orders 
from home, formally saluted the Sicilian flag. But these 
compliments and encouraging assurances, which sprang 
from a short-lived misconception, and were designed to 
promote an abortive object, w^re all that the Sicilians 
really obtained in the way of recognition from the two 
great Powers of tlie West. They in vain, hi the month 
of April, despatched four commissioners to negotiate f(jr 
a more formal and complete acknowledgment at London 
and Paris. These emissaries obtained audience in Lon- 
don of Lord Palmerston, and in Paris of M. de Lamar- 
tine, received in both places assurances of an early 
official recognition, and were admitted, by the Prench 
Government at least, to transact business informally. 
But they were told " that as Prance itself, from not 
having definitively organized its political state, nor ar- 
ranged the code by which it was to be governed, had 
not then been diplomatically recognised by the other 
European powers, so the Government of the Republic 
could not recognise the Government of Sicily diplo- 
matically and officially, until the provisional state should 
cease, and the Sicilians should have arranged their laws 
and elected their king." An application made in June 
to the English Government by a respectable Sicilian 
resident in j\Lalta, who had been appointed consul by 
the Provisional Government, to be received in that ca- 
pacity, was declined, although he was " allowed to act 
so that commercial inconvenience might be prevented." 
And Sicilian vessels in the port of London were obliged 
to have recourse to the protection of the Sardinian 
consul until February, 1S49, when that assistance was 
withdrawn, and a despatch from Gioberti on the subject 
elicited only the dry response that " no oflicers of the 
British Government in the United. Kingdom can perform 



40 



consular functions for foreign vessels arriving at or de- 
parting from a British port." The permission, inad- 
vertently given, to return some guns out of the Ord- 
nance stores, expressly for the use of the insurgents, vras 
cancelled, and the offence repaired by an honourable 
apology. And Mr. Temple and M. de Rayneval, in 
their last fruitless effort at reconciliation, (March 20, 
1849,) did not hesitate to declare that King Ferdinand 
" 71 avail jamais cesse auoc yeiix de leurs Goucernetnents 
respeciifs d'etre le souverain legitime de la nation 
Sicilienne'^." 

<J In the House of Commona, April 20, 1849, Mr. Bankes 
asked " When it was that the insurgents of Sicily were first re- 
cognised by the Grovernmeut of Great Britain as ' the Sicilian 
Government ?' " 

Viscount Palmerston said; — "Witli regard to the second 
question, I have to state that the existence of tlie Government 
of Sicily, acting in and administering the affairs of that island, 
was acknowledged by Her Majesty's Government as early as the 
beginning of last year, when, at the request of the King of 
Naples, the Earl of Minto placed himself in communication with 
that Government for the purpose of effecting an amicable settle- 
ment of the differences between them. We recognise that which 
is ; and though the Hon. Gentleman may shut his eyes to the fact, 
it is a fact to which the Government of Naples have not been able 
to shut theirs 

" Mr. Bankes. — Am I to understand that the Government now 
recognise the Sicilian Government as separate from the Govern- 
ment of the King of Naples ?" 

"Yiscount Palmerston. — Her Majesty's Government acknow- 
ledge the fact that there is in Sicily a Government administering 
the affairs of Sicily. It is a Government de facto : it is impos- 
sible for the Hon. Gentleman or anybody else to deny that." 
— Hansard, civ. 538. 

The question was parried (as from its form it deserved to be), 
not answered. 

I subjoin, as bearing on these transactions, some contemporary 
events, with their dates: — 



41 

I have just referred to a time when revolutions swept 
over Europe like thunder-storms, as violent, as transient, 
and almost as wayward in their course. Another in- 
cident, which belongs to the same period, may be men- 
tioned here. At the end of 1848 a civil war broke out 
in Hungary, and President Taylor in his Message for 
1849 informed the American Congress that some "faint 
prospect" having shewn itself that the Hungarian people 
might become independent, he had deemed it his duty, 
in accordance with the popular feeling, " to stand pre- 
pared, upon the establishment by her of a permanent 
Government, to be the first to welcome independent 
Hungary into the family of nations. . . . For this pur- 
pose I invested an agent then in Europe with power to 
declare our willingness promptly to recognise her in- 
dependence in the event of her abihty to sustain it." 
Nothing can be more undignified, as it seems to me, 
than this officious haste in saluting a " faint prospect," 
nothing more contrary to principle or more justly offen- 
sive than a recognition by anticipation, profiered not 
when the struggle is virtually over, or even far ad- 
vanced, but before it has well begun. At Washington, 
however, they thought, and doubtless still think, very 
differently ; and the President's policy was defended by 
Mr. Webster, then Secretary of State, in an elaborate 
diplomatic note, as " warranted by the law of nations, 
and agreeable to the usage of civilized states." This 

1848. Feb. 24. Revolution iu France and fliglit of Louis Philippe. 
,, March 23. Radetzky compelled to evacuate Milan. 

,, Aug. 10. Charles Albert driven out of Louibardy. 
„ Nov. 15. Murder of Kossi. 

,, Dec. 10. Louis Napoleon elected President of tiie French 
Eepublic. 

1849. March 20. Charles Albert defeated at Novara. 



42 

policy, he subsequently declared, was " fixed and fastened 
upon the United States by their character, their history, 
and their position among the nations of the world, and 
would not be abandoned or departed from until some 
extraordinary change should take place in the general 
current of human affairs "■." The general current of 
human affairs, let us venture to hope, has not yet de- 
serted its ancient channels 

If we consider the series of cases we have just gone 
through, and attend to their points of resemblance and 
difference, we shall have no difficulty in tracing through- 
out them a rule pretty uniformly acknowledged, though 
very variously applied — a rule flowing directly from the 
fundamental principles of international law, and con- 
firmed by practice. The question has always been, not 
whether the parties to a civil war might be treated as 
belligerents, but whether rebellion had in fact become 
civil war; not whether acquired independence was a 
title to recognition, but whether independence had really 
been acquired or no. Eunning through every dispute 
and present to the mind of every disputant, though not 
always clearly drawn, we see the distinction between 
considerations of strict right, which attach themselves to 
the rule, and fasten upon it the character of a law, and 

*■ Wheaton's Elements, by La^vrence, p. 35, note. 

° As recently as Oct. 1860, tlie Government of the United 
States recalled its minister, Mr. Eandolph Clay, from Lima, 
becaase tbe Peruvian Government refused compensation for two 
American ships (the Georgiana and the Lizzy Thompson) which 
had been captured whilst engaged in a prohibited traffic (the guano 
trade), with clearances from an insurrectionary Government esta- 
blished at Arequipa in Southern Peru. {Annuaire des Deux 
Monies, 1860, p. 681.) But I believe that this claim has not 
been pressed since it became apparent that it might prove an 
inconvenient precedent. 



43 

considerations of courtesy, forbearance, decorum, pru- 
dence, seasonablcness, customary observance, and the 
like, which regard merely the application of the rule. 
In this point of view, the distinction I am speaking of 
may serve as an illustration (though it is very far from 
being the most forcible that could be chosen) of what 
we mean when we say that the law of nations as it now 
exists is not a body of mere customs or mere opinions, 
(which in themselves and as such cannot create rights,) 
but is somethinsj more. I have said that the distinction 
has not always been clearly drawn, for it is not always 
a litigant's interest to be clear, even when passion suffers 
liim to be so. But I need not enlarge on its practical 
importance. Who does not see how good it is at this 
moment for the peace of the world, and for the mutual 
respect of nations, that there is a positive rule to appeal 
to which cannot be gainsaid, an clement of discussion 
(should discussion arise) settled, stable, permanent, ca- 
pable of being separated from what is occasional and 
temporary — how it serves as a guide to one party, and 
as a restraint to the other? Who can fail to see how 
much such a restraint is needed ? Of all the trying and 
painful situations through which a people can be con- 
demned to pass, there is none perhaps which has such 
a tendency to render the sufferer irritable, inconsistent, 
unreasonable, as a successful revolt. AVhen foreign con- 
quest tears away a })rovincc, it is a heavy misfortune, 
l)ut it is the fortune of war ; but the bitterness of a 
family quarrel, pushed to the last extremity, rouses the 
passions more effectually, and excites intenser resent- 
ment, and an acuter sense of wrong. The Americans 
of the North feel themselves to be fighting not for a pro- 
vince, or for half-a-dozen provinces ; not for the j\lis- 
sissippi and that one spot on the surface of the globe of 



44 

whicli Jefferson said that the alien possessor, be he who 
he might, must be regarded by the United States as 
their natural foe, (I mean the outlet of the Mississippi, 
New Orleans) ; not even for the boundless and fertile 
West, which, sooner or later, must go with the great 
river ; not for these things only, but for the very exist- 
ence of their country, for its grandeur, its security, the 
many present advantages, and the almost illimitable ex- 
pectations which were the birthright of the American 
citizen. Well, there have been others before them who 
have struggled against similar sacrifices, and have strug- 
gled in vain. But that is no consolation to them. And 
so he, who has ever piqued himself on sympathizing with 
revolt all over the world, (except the revolt of the coloured 
against the white man,) now knows not how to par- 
don the faintest symptom of an inclination even to give 
a fair hearing to the South; he who would have most 
angiily resented the least interference in his domestic 
politics, is angry that foreigners should stand neutral in 
a quarrel which he is proclaiming with the same breath 
to be a purely domestic matter; he whose first axiom 
has been that no Government could be just which was 
not founded on consent, now clings with all the tenacity 
of the veriest despot to the forcible maintenance of 
a sovereignty against which millions rebel. The Ame- 
rican, however, in his heat and inconsistency, feels only 
what any man would feel in his situation who loved his 
country and had warm blood in his veins ; only he feels 
it more acutely, and expresses it more violently, because 
it is an infirmity of his national character to be irritable 
and overbearing. 

Two opposite inferences may be drawn from this. 
Some may say that in a matter confessedly requiring 
so much tenderness and circuLuspection the hands of 



45 

every foreign Government onglit to be as free as pos- 
sible, and its course guided entirely by circumstances ; 
and that the dictum (always a favourite with statesmen) 
that the time and mode of recognition are a mere ques- 
tion of prudence and jwlicy, should receive the largest and 
most liberal construction. By others it may be argued 
that under this treatment the rule itself disappears, with 
all its advantages ; that all the controversies to which 
these cases give rise, spring up in the debatable ground 
which surrounds the rule ; and that to enlarge that field 
of strife, at the expense of the rule itself, can only 
multiply disputes. This view appears to me, I own, 
to be the nearer to the truth. That a pretty wide dis- 
cretion must always be left to the recognising Power, 
there is no doubt ; for this, if for no other reason, that 
the rule itself is vague, and that not merely from the 
imperfection of language, but because it must always be 
impossible to determine at what precise point of time 
a State has consolidated itself and independence has 
actually been achieved. There is room also for an 
infinite variety of circumstances. Ten months may 
effect in one case what ten years are too little to accom- 
plish in another. A great military reverse, like that of 
Saratoga or Ayacucho, may or may not be a legitimate 
argument — it is generally a suspicious one. The tie of 
national union, accordino; to its strenofth and texture, 
may snap like lighted tow, or give way slowly and pain- 
fully, like the sinews and fibres of a living frame. Again, 
it is true, of course, that nations will always listen, as 
men do, to every consideration wliich seems to bear upon 
their interests, and that in their dealings with each other, 
as in private affairs, there are no laws so strict, no rights 
so imperative, but that the use of them may be directed 
by prudence and softened by courtesy and forbearance. 



46 

But it is one tiling to admit this reasonable latitude and 
unavoidable uncertainty, and another to let in every ima- 
ginable motive and transient scheme of policy, and so 
reduce the act of recosjnition from an exercise of a right, 
to which no one can object apart from considerations of 
time and circumstance, to an arbitrary exertion of the 
will, with which anybody is free to quarrel. It is one 
thing to say to a sore and resentful people, ' We recog- 
nise the independence of a country that once was yours, 
because it is independent, because justice and general 
convenience require it,' — nay, (if you will have it so,) 
' because, having a causa jtistificativa in the fact that it 
is free, we have a causa suasoria in the want of cotton ;' 
and another to say (whether in so many words or not) 
we recognise because it will assist the cause of liberty 
or of authority, because it will promote or check re- 
publicanism, because the wind in our hemisphere sets 
this way or that, because we have a rival to outstrip or 
counteract, or for any other temporary reason that may 
suggest itself to a too alert and sagacious statesman 
with his eye on the weathercock and every facility for 
writing telegrams. 

One word in conclusion. It has been my object in 
this lecture, not to defend the acts of the Queen's Go- 
vernment, but to illustrate a section of International 
Law. Yet I know not why I should refrain from say- 
ing that there never was a case in which an English 
Government (as it seems to me) stood less in need of 
an apology. Scrupulously neutral, and studious to avoid 
offence, we have even exceeded (but very wisely) the 
strict obligations of neutrality * by prohibiting both the 

* A neutral power is at liberty either to admit or to exclude 
belligerent sliips, whether cruisers or privateers, or to admit the 
cue and not the other, and either to grant or refuse them permis- 



47 

public and private sliips of either belligerent from bring- 
ing prizes into our ports. AVe have made no public 



sion to bring in prizes, and to allow or prohibit the sale of prizes 
brought in, after condemnation by a coui't of the captor, (or, per- 
haps, as a provisional measure, before condemnation) ; but the 
condemnation of a prize by a court sitting in a neutral port is in- 
valid, and for the neutral power to authorize t!ie establislnnent of 
such a court would be a breach of neutrality. " The absence of 
a positive prohibition implies a permission to enter the neutral 
ports for these purposes." (Wheaton, El., 498.) " II est gencrale- 
ment admis que les prises maritimes validees par jugement defi- 
nitif peuvent etre vendues dans les ports neutres." (Ortolan, Diplo- 
tnatie de la JSIer, ii. 274.) To grant any of these advantages to 
one belligerent and deny them to the other would be a departure 
from the principle of neutrality, unless this were done in pursu- 
ance of a treaty made before the war. Such treaties have been 
held to apply to the case of a civil war, (the " Bello Corrunes," 
"Wheaton's ^e^., vi. 152). 

The treaty of 1794 between Great Britain and the United 
States contained clauses under which, on the one hand, American 
cruisers and privateers were to be admitted with their prizes into 
English ports, and " to be at liberty to hoist sail and depart as 
speedily as may be, and carry their prizes to the place mentioned 
in their commissions or patents"' — while on the other, it was not 
to be lawful for "any foreign privateers, not being subjects or 
citizens of either of the said parties, who have commissions from 
any other prince or State in enmity witli either nation, to arm 
their ships in the ports of either of the said parties, nor to sell 
what they have taken, nor in any other manner to excliange the 
same, nor shall they be allowed to purchase more provisions than 
shall be necessary for their going to the nearest port of that prince 
or State from whom they obtained their commissions." And 
" no shelter or refuge shall be given in their ports to such as 
shall have made a prize upon the subjects or citizens of either of 
the said parties ; but if forced by stress of weather, or by the 
dangers of the sea, to enter tlierein, particular care shall be taken 
to liasten their departure, and to cause them to retire as soon as 
possible." (Arts. 24, 25.) 

These articles were to continue in force for twelve years. Tho 



4S 

protest against a blockade of an immense range of coast, 
very loosely maintained. The only complaint that has 
been made against us, is the peevish one of having pro- 
claimed our neutrality too early. I think it was not an 
hour too early, England is not Russia. Her West 
Indian Colonies lie in close neio-hbourhood to the theatre 
of. war ; a crowded thoroughfare runs from Liverpool 
to New York, and we have distant settlements scat- 
tered over the globe, to one of which (if we may believe 
the newspapers) blank letters of marque from the Con- 
federate States found their way even before the arrival 

whole treaty was made void by the war of 1812, and the stipula- 
tions above mentioned were not renewed in 1815. The treaty be- 
tween the United States and France (Feb. 6, 1778,) had contained 
clauses substantially the same. This treaty was " annulled " by 
Act of Congress in 1798. The 25th Art. of the French Treaty of 
Sept. 30, 1800, is siinilar.to Art. 24 (respecting privateers) of the 
British Treaty of 1794. The article stipulating for the admission 
of armed ships with their prizes, was modified so as not to involve 
a positive engagement to admit them, and the prohibition against 
admitting prizes taken from the United States was omitted alto- 
gether. The French Orclonnance de la Marine of 1681, following 
a previous regulation of Feb. 1, 1650, prohibited any prizes taken 
by a foreign ship from remaining in a French port more than 
twenty-four hours, except on account of stress of weather. 

In the present war, the British Government has interdicted 
" the armed ships and also the privateers" of both parties from 
carrying prizes into the ports of Great Britain or her Colonies. 
(Lord J. RusselVs Letter, June 1, 1861.) 

The French Government, by a declaration published June 11, 
1861, declares that " (1.) no vessel of war or privateer of either of 
the belligerent parties will be allowed to enter or stay with prizes 
in our ports or roadsteads longer than twenty-four hours, except 
in case o{ reJache forcee. (2.) No sale of goods belonging to 
prizes is allowed in our ports or roadsteads." 

The regulations published by the different powers which re- 
mained neutral during the war of 1854 are stated in Ortolan, ii. 
App. viii. ; De Cussy, Droit Maritime, i. 211. 



49 

of the Proclamation. But if England had had no more 
connection than Russia has with American affairs, it 
wonld not have been too soon for her to declare her 
neutrality five months after the commencement of the 
revolt ; three months after a group of six Southern 
States in convention assembled had established a re- 
gular constitution ; one month after the bombardment 
of Fort Sumter; and at a time when 75,000 men had 
been called out on one side, and an army of scarcely 
inferior force on the other, when an Act " recognising 
the existence of war" and authorizing general reprisals 
had been passed by the Southern Congress, and when the 
President of the Confederacy had begun to commission 
privateers, and the President of the Union had announced 
a blockade. The characteristic feature of this contest 
is the extraordinary rapidity of its growth, discontent 
bursthig all at once into revolt, revolt gathering a po- 
pulation of I know not how many millions under its 
standard, insurrection swelling instantaneously into war. 
The discontent had been long nourished ; and when the 
rupture took place, the State Governments, already su- 
preme in all local matters, — that is to say, in nineteen- 
twentieths of the whole sum of public business, — were 
able, by merely combining, to organize a regular legis- 
lature and administration, and to set up at Richmond 
a President and a Congress looking like a spectral coun- 
terpart (so close is the resemblance) of the President 
and Congress at Washington. Of the two questions 
which every revolted people soliciting recognition nuist 
be prepared to answer — Have you a Government of 
your own ? and, Is it independent of any other ? — the 
first is answered already. The Confederate States have 
a Government, new indeed, and made somewhat pre- 
carious by the very principle on which it has been 

E 



50 

founded, but yet a Government, whilst they are still 
engaged in a doubtful struggle for independence. A 
revolt from a Federal Government is indeed pretty sure 
to differ from all other revolts, if in nothing else, in the 
greater rapidity of the process of separation. There is 
less to pull down, and less to build up. It is a differ- 
ence, not in principle, but in fact ; and the whole ques- 
tion in these cases is a question of fact. 

All Souls' College, 
Nov. 1, 1861. 



NOTE A. 

Extracts from the Memoirs of the Life ami Writings of Ben- 
jamin Franklin, by his Grandson, William Temple Franklin. 
London, 1818. Vol. ii. 

" Ameeicak paper-money beginning about this time to fall into 
disrepute, and immediate supplies of arms and ammunition for tlie 
use of the ai-my being absolutely necessary, Congress turned their 
attention to Europe, and to France in particular, for the purpose 
of obtaining aids in money and military stores as the only means 
of resisting the power of Great Britain, and preserving their 
newly-acquired independence. In the latter end of 1770 a Com- 
mission was appointed for this object, and Dr. Franklin, though 
then in his seventy-first year, was considered, from his talents as 
a statesman and reputation as a philosoplier, the most suitable 
person to elfect the desired end, and was consequently nominated 
Commissioner Plenipotentiary to the Court of France, in conjunc- 
tion with Silas Deane and Arthur Lee, Esqrs, The former had 
already been sent to Europe for the purpose of secretly obtaining 
and forwarding warlike stores, &'c., and the other had been em- 
ployed by Congress as a private and confidential agent in Eng- 
land."— (p. 42.) 

" Dr. Franklin was privateli/ received, with every demonstration 
of regard and respect, by the Minister for Foreign Affairs, M. le 
Comte de Vergennes, who assured him and the other American 
Commissioners that they sliould personally enjoy in France " toute 
la surete et tons les agrements que nous y faisons eprouver aux 
etrangers. . . . 

" A conviction of the advantages to be derived from a commercial 
intercourse with America, and a desire of weakeniug the IJritish 
empire by dismembering it, induced the French Court secietly to 
give assistance in military stores to the Americans, and to listen 
to proposals of an alliance. But tliey at first shewed rather a 
reluctance to the latter measure, which however by Dr. Franklin's 
address, aided by a subsequent success attending the American 
arras, was eventually overcome, 

" Early in January, 1777, Dr. Franklin went to Versailles with 

e2 



52 

his colleagues, and according to the instructions from Congress 
communicated to the Count de Vergennes, Minister for Foreign 
Atfairs, certain proposals in writing to induce the Government of 
France to take a decided part in favour of tlie United States, and 
send a certain number of ships of the line and frigates to act 
against the British on the coast of America. But no answer was 
then obtained to these proposals, that Government not being then 
prepared to interfere openlij in regard to the existing dispute. 
France had indeed suffered so much in t!ie preceding war with 
Great Britain that there was probably no Frenchman who did not 
wash for a diminution of the power and resources of this nation ; 
and there were but few who did not perceive that this reduction 
would in a considerable degree be effected by Sk ^prolongation of the 
subsisting contest with America, in whatever way it might ulti- 
mately terminate ; and therefore, tliough the French Government 
did not think it prudent to risk the consequences of a war with 
Great Britain until the Colonies, or United States, of America 
should have sufficiently manifested both their ability and deter- 
mination to persevere in contending efficaciously for their inde- 
pendence, it was convinced of the impolicy of exposing the latter 
to the necessity of submitting to Great Britain by any want of 
arms, &c. to defend themselves, and protract their resistance. 
France had, therefore, previously to Dr. Franklin's arrival, at the 
solicitation of Mr. Deane, determined secretly to afford a consider- 
able supply of artillery, arms, and military stores to the American 
Congress ; and for this purpose the celebrated Caron de Beau- 
marchais was employed as an ostensible agent in the business; 
and, the better to conceal the origin and nature of this trans- 
action, he established a commercial house at Paris under the firm 
of Roderigue Hortalez and Co. And thougli he was in fact sup- 
plied with such articles as could be spared from the arsenals of 
France, and with money to purchase the others by the French 
Government, he required and obtained from Mr. Deane a stipu- 
lation that Congress should deliver to his agents tobacco and 
other American productions to the amount of the articles sup- 
plied ; after which these articles were shipped for America at 
different times and in different vessels : one of these was the 
* Amphitrite,' a large ship, from which were landed in New Hamp- 
shire the artillery, arms, &c. employed in the capture of General 
Burgoyne's army. But previously to that event the British troops 
had obtained important advantages in other parts of America, and 



53 

in consequence thereof Lord Storraont bad complained to the 
French Court in such energetic and menacing terms of the assist- 
ance afforded by France to the American Congress, that an imme- 
diate rupture with Great Britain was apprehended ; and an order 
w-as therefore secretly despatched by M. de Sartine, then Minister 
of the Marine, to recall the French fishermen from tlie banks of 
Newfoundland. And, the better to pacify the British Govern- 
ment, Mr. Hodge, an American merchant, who had equipped and 
sent out from Dunkirk the privateer by which a British packet 
going from Dover to Ostend, as well as other British vessels, liad 
been captured, was sent to the Bastile ; and the master of the 
* Amphitrite' (which had recently returned to France after landing 
her cargo of artillery, &c., in America) was also committed to 
prison. Indeed, matters became so serious, that M. le Beaumar- 
chais, though he had done nothing without the authority of his 
Government, fully expected that a severe punishment would be 
inflicted on him, as a means of convincing Lord Stormont that the 
supplies sent to America had been furnished without the privity, 
or at least the sanction, of the French Government. He came to 
Passy early in December, and complained in strong terms of the 
treatment which he was about to suffer, saying, ' On me coupe la 
gorge comme un agneau,' &c. But while he was doing this, Mr. 
Austin, who had been despatched by the Government of Massa- 
chusetts Bay with an account of the surrender of General Bur- 
goyne and his whole army, arrived at Passy ; and this news being 
made known, M. de Beaumarchais immediately discarded his fears 
and returned to Paris in the highest spirits, and with such haste 
that the cabriolet in which he rode was overset, and one of his 
arms dislocated, by the way, 

" The American Commissioners began privately to grant letters 
of marque to a nu'uber of French- American privateers, which 
harassed the English coasting trade, intercepted a great number 
of British merchant vessels, and took many prisoners. [Lord 
Stormont] presented several memorials to the French Ministers, 
complaining of the equipment of American vessels in the ports of 
France, bringing in their prizes, &c., and of the assistance France 
was underhandedly affording to the insurgents, demanding at the 
same time a categorical answer respecting such conduct". 

" On this occasion I\L de Yergennes affected to remonstrate 

" One of the privateers commissioned by Franklin (the " Bhick Prince") took 
in one year sevcuty-fivc sail. Memoirs, kc, ii. 217. ^ 



54 

witli the American Commissioners, and on tlie 16tli of July, 1777, 
wrote to tliem tliat tliey had exceeded the bounds limited at their 
first interview with him, whicli were expressly ' que la navigation 
et commerce Americains eprouveroient toutes les facilites en 
France qui seraient compatibles avec I'exacte observance des ses 
traites avec I'Angleterre, qu'il etoil dans les principes du Roi de 
remplir religieusement.' 

" This remonstrance might also in some measure have been in- 
fluenced by the very unfavourable accounts latterly received from 
America, which bore a most unpromising aspect for the success of 
the American cause. In England it was generally thought, even 
by the friends of America, that the struggle for independence was 
at an end, and that nothiug was left for her but an unconditional 

submission In the midst of this supposed gloomy state of 

affairs in America, the news of tlie surrender of the British army, 
commanded by General Biirgoyne, to that of the Americans under 
General Gates at Saratoga, on tlie 17th of October, 1777, arrived 
in France, and at the very moment when the French Cabinet was 
as yet undecided in regard to the steps to be adopted relative to 
the United States. This memorable event immediately turned 
the scale, and fixed the French nation in their attachment to the 
iufaut republic. The news was received in France with as great 
demonstrations of joy as if it had been a victory gained by their 
own arms. Dr. Franklin took advantage of this circumstance, 
and suggested to the French Ministry that there was not a mo- 
ment to be lost if they wished to secure the friendship of America, 
and detach her entirely from the mother country. Urged by these 
considerations, and fearful lest an accommodation might take place 
between Great Britain and her Colonies, the Court of France in- 
stantly determined to declare its intentions, and accordingly on 
the 6th of December, 1777, M. Gerard, Secretary to the Council 
of State, repaired to the hotel of the American Commissioners, 
and informed them by order of the King, that, after a long and 
mature deliberation on their propositions, his Majesty had re- 
solved to recognise the independence of, and to enter into a treaty 
of commerce and alliance with, the United States of America, and 
that he would not only acknowledge their independence, but 
actually support it by every means in his power ; that perhaps he 
was about to engage himself in an expensive war on their account, 
but tliat he did not expect to be reimbursed by them ; in fine, the 
Americans were not to think that he had entered into this reso- 



55 

lutiou solely with a view of serving them, since, independently of 
his real attachment to them and their cause, it was evidently the 
interest of 1" ranee to diminish the power of England by severing 
her colonies from her. 

" This forms a memorable epoch in the political life of Dr. 
Franklin, as well as in the annals of the United States, because 
it was in a great measure owing to the aid derived from this 
powerful alliance that the American Colonies were enabled to 
resist tlie mother country and eventually to establish their in- 
dependence." — (pp. 53 — 61.) 



NOTE B. 



The only serious diiferences known to have arisen between the 
English Government and that of the United States have sprung 
out of the arrest and detention of British subjects, susj)ected 
of having communication with, or favouring, the South. In dealing 
with questions of this nature it is generally proper to draw a dis- 
tinction between persons domiciled in a foreign country, but not 
naturalized there, and persons merely commorant and not domi- 
ciled. The former are in principle bound to contribute to the 
defence of the country in which they have taken up their perma- 
nent abode, and to the support of the public burthens. In prin- 
ciple, therefore, (whatever immunities they may enjoy by particular 
usage,) they are compellable to serve in its armies, except against 
the State to which they owe natural allegiance ; and they are 
taken to have accepted its law as the regulator of their civil 
rights. They have embarked their fortunes in it, and deliberately 
adopted it as their home. In the case of the latter, there is nothing 
fi'om which it can fairly be inferred that they have taken upon 
themselves these liabilities and engagements ; they are bound only 
to conform their conduct to the criminal law and police regula- 
tions of the country they are visiting, so long as they remain in it. 
But both are entitled to the protection of the law which they are 
bound to obey, and both have a right, if that protection be refused 
or withdrawn, to appeal for redress to the Power of which they 
still continue to be subjects even'according to the law of their place 
of sojourn. The only dlfl'ereuce is, that the right in the one case 
is much more circumscribed than in the other, because the domi- 
ciled person has chosen to place himself, as to his ordinary civil 



56 

rights, on the footing of a citizen. He could not, therefore, claim 
restitution or compensation in any case in which the same claim 
might not have been justly made by a citizen — a rule not 
applicable to a person merely commorant. The Power appealed 
to must of course judge for itself whether the act complained 
of be illegal or no ; though the mode and extent of its inter- 
ference may and ought to be governed by the particular circum- 
stances of each case, and a resort to extremities can only be 
justified by a clear illegality, a real injury, and an absolute 
denial of justice. When the illegal act is excused by the plea of 
an overpowering necessity, all that a foreign Government can do 
is to satisfy itself that the plea is genuine, and to take care that 
its subjects do not suffer substantial injustice. The suspension> 
during a civil war, by constitutional authority, of the laws by 
which civil rights are ordinarily guaranteed, does not, of course, 
fall under the category of illegal acts ; and citizens, or domiciled 
foreigners, whose persons or property might be affected by it, 
could not, as a general rule, make any claims against the Govern- 
ment on that account: whether commorant foreigners could justly 
urge such a claim, would depend on the circumstances of the case, 
and on considerations which cannot here be followed into detail. 
Prima facie, a person going to or remaining in a country which 
is in that unhappy condition, svibmits himself to oil those mea- 
sures of the sovereign authority which the public safety may seem 
to require. A violation of the law, by an officer not constitution- 
ally authorized to suspend it, does of course fall within the cate- 
gory of illegal acts, however pressing may be the emergency; but 
the subsequent ratification of such an act, by the authority which 
could have suspended the law, might be justly held, against 
foreigners as well as against citizens, to operate by relation, and 
to bar ^U claims which would have been barred had the act been 
originally legal. 

These are the general principles applicable to such cases. The 
facts are, that two British subjects, both of whom appear to have 
been domiciled in the United States, have, on reasonable grounds 
of suspicion, been arrested and confined without a legal warrant, 
and not in a legal prison, and subsequently released ; w^hile in an- 
other case the officer who had the prisoner in charge refused, 
under an order from the President, obedience to a writ of liabeas 
corpus. If these acts are not illegal, the British Government has 
no right to interfere ; if in the opinion of the British Government 



57 

they are clearly illegal, it is warranted in interfering. Nor does 
the plea of necessity hold good, for the President (having now a 
stronger case than Jefferson had in 1807) might have obtained 
from Congress, under proper limitations, the power to do wha 
he is now doing at his own arbitrary will. But interference 
where no substantial injustice appears to have been done, can 
have no other object than to guard against injustice in future ; the 
prudence and propriety of it are to be tested by reference to that 
object; and, unless the illegality be reasonably clear, there sliould 
be no interference at all. 

Whether the President of the United States is constitutionally 
authorized to arrest without a legal warrant, and to suspend prac- 
tically in individual cases the privilege of the writ of haheas coqnis, 
is a question which cannot be discussed here. The ailirmative 
has been maintained in an elaborate and very able opinion, pub- 
lished in the National Intelligencer, and said to be the composi- 
tion of an eminent jurist, and to have the approval of Mr. Binuey, 
a lawyer of the highest reputation, and the doyen, I believe, of the 
American bar. It is contended in this opinion, — 

1. That the power to suspend the writ is not by the Constitution 
(Art. I, s. ix, 2.) given exclusively to Congress, either expressly 
or by implication. 

2. That this power, together with that of suspending all the 
other legal guarantees of civil liberty, is incident to the power of 
declaring martial law. 

3. That the power to declare martial law, (which is but the will 
and pleasure of the holder of the sword,) — or to substitute martial 
for civil law, even without an express declaration, (which is a formal, 
public, deliberate, act, involving a distinct responsibility,) — and to 
do this with reference, not to a particular district, but to particular 
persons, whether citizens or strangers, whenever he thinks that 
rebellion or invasion render it expedient for the public safety, 
belongs to the President ; and that it is conveyed to him by the 
general grant of the " executive power." The exercise of it re- 
quires, therefore, no mandate or ratification by Congress, although 
the abuse of it would be a ground of impeachment. 

It is natural that these amazing propositions should be in- 
credible to English lawyers, bred up in a free country, where tho 
power of suspending the common right to a haheas corpus belongs 
exclusively to Parliament, and that of declaring martiul law has 
not belonged to tho Sovereign since the Petition of llight. They 



' 58 

may, however, though incompatible with our ideas of civil liberty, 
be consistent with the Constitution of the United States. To me 
they do not appear to be consistent with it. The first article of 
the Constitution, in which alone the suspensive power is men- 
tioned, relates, as it seems to me, exclusively to the legislative 
authority, and touches the acts of the executive only in their con- 
nexion with that authority. This has always been assumed by 
writers on the Constitution, from Story {On tlie Constitution, 
§ 1342; his "doubt" refers to the question of eccigency) to 
Curtis {History of the Constitution, ii. 359). They have never, as 
far as I know, been broached iu America before — for the decision 
in " Luther v. Borden" (Howard's Rep. vii. 1), which relates to 
a declaration of martial law by the legislature of a State, is irre- 
levant — and they have against them, I believe, the opinion of 
Chief Justice Marshall, one of the ablest lawyers who ever lived, 
as \A ell as that of the present Chief Justice of the Supreme Court, 
who has declared that he deems tlie poiut not open to dispute. 
Tet since the question, as affecting American citizens, is certainly 
considered an open question in the United States, we should per- 
haps have done wisely, if, whatever our own views of it might be, 
we had forborne (as we well might) to treat the acts whose cha- 
racter depends on it as clearly illegal. 



LECTURE II. 



A FTER all that has been written within the last twelve 
months upon the Constitution of the United States, 
and the right, or the crime, of secession, I hardly know 
whether it be not an affront to any number of edu- 
cated people to assume that there is any part of the 
subject which they are not perfectly acquainted with, 
or on which they have not made u\) their minds, as far 
as men will take the pains to do so respecting a matter 
in which they have no particular concern. Some points, 
however, there are which might, as it seems to me, be 
placed in a clearer light without wandering far from 
the confines of my own province, or entering into dis- 
cussions with which you are already familiar and which 
allow a boundless scope to differences of opinion. 

At the first approach to this subject, we encounter 
a fact which at once invites and discourages further 
progress, — I mean the fact that the disagreement which 
exists at present about the nature and obligations of the 
Federal Constitution has existed, not only for twelve whole 
months, but for nearly eighty years, — in a word, ever 
since there has been a Federal Constitution. There has 
always been a Federalist party in the United States, and 
an anti-Federalist party, differing from each other partly 
on the question of policy, whether it was a good or bad 
thing to strengthen the central authority and draw tighter 
the tics which bound the States together, but i)artly also 
on the question of constitutional law, what was the actual 



60 ' 

stringency of those ties, and what the extent and limits 
of that authority ^ ? This fact, I say, is at the same time a 
dissuasive and an inducement to proceed. For whilst on 
the one hand it proclaims that the question is still open, 
and invites everybody who pleases to try his hand at 
a solution, on the other it suggests a suspicion that there 
is something in it which is practically insoluble, — some 
difficulty which legal maxims and conceptions will not 
exactly fit, which there is no key to unlock, and on 
which logic fatigues itself in vain. Let us try to find 
out, if we can do no more, how far the question admits 
of being stated in precise terms, and argued on grounds 
solid enough to support an argument. 

The Confederate States say that under existing cir- 
cumstances they had a right to secede ; that the Consti- 
tution was a " pact" or league, to which the States were 
parties ; that the pact had been substantially broken ; 
and that they were therefore entitled to rescind it. 

The States which remain in the Union say that there 
is not, and cannot be, any right to secede under any 
circumstances whatever ; and that the Constitution is not 
a pact, but a law ; and they add that, supposing it to 
be a pact, the pact is not broken. 

A right to secede, as the words are here used by the 

* See the notes to Story's Commentaries on tJie Constitution, 
i. 288, 289 : — " Por forty years one great party has received the 
Constitution as a federative compact among the States, and the 
other great party not as such a compact, but as in the main 
national and popular." — {Dane's A2Jpendix, cited by Story, I. c.) 
That the Constitution is a federative compact was asserted by tlie 
Legislature of Kentucky in 1797 and 1798, by that of Virginia in 
1798, by G-eorgia in 1825, by Virginia in 1829, by South Carolina 
in 1827 and 1833, by North Carolina in 1837. See also Eawle's 
View of the Constitution of the United States, (1825). The word 
Federalist is used iu the text in its original sense. 



61 

South, docs not mean a legal riglit. A legal riglit is 
a claim created and secured by positive law ; but, by the 
Southern hypothesis, there is no positive law to which 
the States of the Union are subject: they cannot therefore, 
strictly speaking, have any legal rights against each other. 
A right here means u claim agreeable to received maxims, 
to legal analogies, and to the general sense of justice. It 
is only to these maxims and analogies, and to this gene- 
ral sense, that the South can appeal ; the tenor and 
history of the instrument called the Constitution fur- 
nishing them, according to their reading of it, with 
a minor premiss. 

In the opinion of the North the States are subject to 
a law, and have legal rights against each other. But no 
State has or can have, by law, a right to release itself at 
its own will from the operation of the law, which in that 
case would be no law at all. The correctness of this view 
depends upon the Northern reading of the Constitution. 

In determining which of these two views is right, 
or is nearer to the truth than the other, there are two 
things to be considered — the Constitution itself, and 
its history. 

If this were merely or primarily a question of interpre- 
tation, the history of the Constitution would be im])ort- 
ant only as supplying a commentary on the text and 
throwing light on its obscure places. But the question, 
whether a particular act be an agreement or a law, is not 
merely, nor })rimarily, a question of interpretation. We 
have to ask, in the first place, on what authority the act 
reposes ; by whom, and with what intention, it was 
done. The history of the Constitution, therefore, in this 
inquiry, takes precedence of the Constitution itself in 
the order of importance as well as in the order of time. 

The establishment of the Constitution, according to 



the N^orth, was an act done by the whole body of the 
American people, exercising a sovereign authority vested 
in that collective body ; the Constitution itself was in- 
tended to operate as a law, and, so established, became 
binding as a law on all Americans, and upon all the par- 
ticular and subordinate societies into which they were 
grouped, and which were called States ^. 

According to the South, it was an act done by the 
thirteen States as sovereign and independent States, 
none of which had authority to impose a law upon the 
rest, and which collectively had no authority over any 

^ Story, i. 281 : — " The Constitution was neither made nor rati- 
fied by the States as sovereignties or political communities. . . . 
The doctrine that the States are parties is a gratuitous assump- 
tion. In the language of a most distinguished statesman, (Mr. 
Webster,) ' the Constitution itself, in its very front, refutes that. 
It declares that it is ordained and established by the People of 
the United States. So far from saying that it is establislied by 
tbe governments of the several States, it does not even say that 
it is established by the people of the several States ; but it pro- 
nounces that it is established by the people of the United States 
in the aggregate. Doubtless the people of tbe several States, 
taken collectively, constitute the people of the United States. 
But it is in their collective capacity, it is as all the people of the 
United States, that they establish the Constitution." 

So also Mr. Motley: — "The Constitution was not drawn up by 
the States, it was not promulgated in the name of the States, it 
was not ratified by the States. The States never acceded to it, 
and possess no power to secede from it. It was ' ordained and 
established' over the States by a power superior to the States — 
by the people of the whole land in their aggregate capacity, act- 
ing through conventions of delegates expressly chosen for the 
purpose within each State, independently of the State govern- 
ments, after the project had been framed." — Causes of the Civil 
War in America, by J. L. Motley. 

See also Lieber's Lectures on the Constitution of the United 
States, New York, 1861. 



63 

one of theiu ; and it was intended to operate as a bare 
contract between them. The parties to the contract own- 
ing no common superior, even in the collective body, 
retained each an independent right to construe its terms, 
to judge whether they were duly observed, and to rescind 
it if they were not °. 

That the States were sovereign and independent at 
the time when the Constitution was ratified, is admitted 
generally, but not universally. 

Let us examine this point a little. 

The North American colonies, immediately before tlieir 
separation from Great Britain, were a group of commu- 
nities, independent of one another, but united by the 
tie of a common allegiance, and forming part of one 
empire. A citizen of Massachusetts Bay had a right, if 
he pleased, to trade with Virginia, or to take up his resi- 
dence there, subject to no restrictions from colonial legis- 
lation. The mere severance of the tie of allegiance was 
not enough in itself to convert them into sovereign States. 
A handful of villages, a cluster of townships, ten square 
miles, or twenty, or a hundred, of wood and water or of 
populous and fruitful plain, do not become a State sim- 
ply because they are left masterless by revolution or by 
the fortune of war. No community is a State which 
has not acquired an organization and a Government ad- 
equate for the discharge of international duties; — for 
the perfect performance of them I do not say, but for 
the performance of them in a real and substantial sense. 
The colonies were torn gradually away from the mass of 

■= Resolutions of Legislature of Virginia, 1829 : — "There is no 
common arbiter to construe the Constitution of the United States : 
the Constitution being a federative compact between sovereign 
States, each State has a riglit to construe the Constitution for 
itself." See also note (a), p. GO. 



64 



the empire, clinging long after the commencement of 
the war to the hope of a reunion ; they were very im- 
perfectly organized, and animated by nothing like a dis- 
tinct sense of national unity, either in the separate parts 
or in the whole ; they were divided by a thousand 
petty jealousies and jarring interests, which multiplied 
and gained strength after the Declaration of Indepen- 
dence, as well as by their separate institutions and habits 
of local self-government ; and held together by the ne- 
cessity for a common resistance to a powerful enemy. 
There was a time when they were neither subject' nor 
sovereign, neither one State nor many, and when it was 
a matter of uncertainty what their destiny in this re- 
spect would be. The Unionist influences were weak, the 
Separatist influences were strong; and the war, which 
bound them together in their infancy, lasted long enough 
to leave them a Confederacy, but not long enough to 
make them a Republic — or, what some thought the only 
resource against anarchy and impotence, a kingdom. 
These conflicting tendencies are plainly to be seen in 
the Continental Congress which first met on the 5th of 
Sept. 1774, rude and imperfect in form, provisional in 
its functions, and with no powers whatever beyond that 
of recommendation and advice. The members of the 
Congress styled themselves " the delegates appointed by 
the good people of these colonies ;" but they were in fact, 
as their first act proved, the delegates of the colonies 
rather than of the people. As soon as they met, the 
question arose how they were to vote. Was an equal 
voice to be given to colonies so unequal in wealth and 
population, and therefore in their contributions to the 
common cause? On the other hand, how could there 
be an apportionment, in the absence of any evidence 
by which these inequalities could be ascertained ? " The 



65 

opinion was advanced," says Mr. Cuitis ^, " that the co- 
lonial governments were at an end, that all Aniciica 
was thrown into one mass, and was in a state of natnr(% 
and consequently that the people ought to be considered 
as represented in Congress according to their number, 
by the delegations actually present." These delegations, 
however, varied in their numbers, not according to any 
principle, but by accident or arbitrary choice, each colony 
having sent (as within certain limits they continued to 
do under the Confederation, and as was done in the 
assemblies of the Dutch United Provinces) as many 
deputies as it pleased. It was resolved at last that each 
colony should have one vote, but it was added that this 
course was adopted because Congress had not and could 
not procure the proper materials for ascertaining the 
importance of each colony. This decision may be said 
to have fixed, to some extent, the future form of the 
American commonwealth. 

The first transition period of the Revolution ended with 
the publication of the "Declaration of Independence," 
July 4, 1776. The Declaration, " that these United Colo- 
nies are, and of right ought to be, free and independent 
States," was adopted by the votes of all the colonies in 
Congress, the delegates having previously sought and 
obtained from their constituents authority to agree to 
the resolution upon wdiicli the declaration was founded. 
The title of " United States" succeeded from that time, 
in ordinary use, that of " United Colonies," and in the 
September following was expressly substituted for it, in 
commissions and other public instruments, by authority 
of Congress. Previously, however, on the 24tli of June, 
it had been resolved " that all persons abiding within 

^ History of the American Constitution, i. 13.' 
F 



66 

any of the United Colonies, and deriving protection from 
the laws of the same, owed allegiance to the said laws, 
and were members of such colony ;" and as early as 
May 10 a recommendation had been issued that the. 
several colonies should establish governments for them- 
selves, the time having come when the exercise of every 
kind of authority under the Crown ought to be suppressed. 
Pursuing this advice, seven of the thirteen colonies esta- 
blished their constitutions in the year 1776, two in 1777, 
one in 1778. Two (Connecticut and Rhode Island) long 
continued their old form of charter government. These 
separate governments were therefore in full operation for 
some time before the States were formally united by 
any federal tie. On the same day on which the com- 
mittee of Congress for preparing the Declaration of In- 
dependence was appointed, another committee, consisting 
of one member from each colony, was directed to pre- 
pare and digest Articles of Confederation. A draft of 
these Articles was presented by the committee on the 
twelfth of July, underwent much discussion, and was 
finally submitted for consideration to the legislatures of 
the several States, with a request that, if they approved 
of the instrument, they would authorize their delegates 
to ratify it in Congress. It was ratified accordingly 
by eight States on July 9, 1778; by three others be- 
fore the close of the year : Delaware and Maryland, 
discontented about the apportionment of the north- 
western territory, and always slow and unwilling ad- 
herents to the revolutionary cause, ratified it respec- 
tively in 1779 and 1781. 

I have dwelt a little upon these transactions because 
they arc material as shewing the position occupied by the 
States and State Governments during what I may call 
the second transition period — the interval between the 



67 

Declaration of Independence and the final adoption of 
the Articles of Confederation. "We have here, on the 
one hand, thirteen Governments, bonnd together by no 
legal or formal union, and each exercising all the powers 
of an independent Government, except that it had no 
transactions with foreign States ; co-operating with each 
other by means of an assembly of delegates, owning no 
obedience to that assembly, but receiving from it recom- 
mendations and advice, and acquiescing tacitly in the 
exercise by it of a slender and precarious authority, un- 
defined and unrecognised by law, such as springs up 
naturally during revolutions. The most remarkable ex- 
emplification of this is the conclusion of the treaties 
with France. For every important public act of Con- 
gress each colony gave special powers to its delegates, — 
as for the Declaration of Independence, the ratification 
of the Articles of Confederation, and the appointment of 
plenipotentiaries to conclude these treaties. But it is re- 
markable that, though made between the French King 
and the Thirteen States nominatlm, they were never 
ratified by the States and never presented to them for 
ratification. 

The general opinion of American lawyers is, or lately 
was, that at some point of time not precisely ascertain- 
able, before the adoption of the Articles, the States had 
become severally sovereign and independent. Techni- 
cally they certainly were so ; and they were so substan- 
tially, subject to the qualification which arises from the 
fact that there never had been a time when they were 
not in co-operation with each other, and never an in- 
stance in which they had singly had any transaction 
with foreign Powers. 

But that the States at the time of ratifying the Arti- 
cles considered themselves absolutely sovereign and ab- 

r 2 



68 

solutely independent, the strongest proof is to be found 
in tlie Articles themselves. The States are everything 
in this instrument, and the people nothing. The " good 
people of these colonies" — the "American people" — 
have now entirely vanished, and State sovereignty is 
written with jealous care in every line. " The style 
of this Confederacy," it begins, " is the United States 
OF America." The States enter into a "firm league 
of friendship" for limited purposes ; the States reserve 
individually their " sovereignty, freedom, and independ- 
ence, and every power, jurisdiction, and right which is 
not by this Confederation expressly delegated to the 
United States in Congress assembled." They agreed 
indeed with each other not to exercise singly some of 
the most important powers which belong to sovereignty; 
they agreed to entrust this mass of powers to the 
United States in Congress assembled, that is, to a body 
of delegates in which each State had an equal voice with 
the rest ; they pledged themselves that their union 
should be perpetual. But it was an agreement without 
sanctions, and with no machinery provided for enforcing 
it ; an agreement to which the States only were parties, 
in which they only were mentioned, and which could be 
carried into eff'ect only by their voluntary co-operation. 

A Confederation is nothing else than a perpetual alli- 
ance, whereby each allied State, without recognising in 
any higher authority a right to interpose between itself 
and its own subjects, submits itself, as regards the ex- 
ercise of some portion, greater or less, of its sovereign 
powers, to the control of the collective body ; it is a 
partnership for an indefinite period, in which each part- 
ner binds himself for the common advantage of the firm. 
An apportionment is made of the powers of sovereignty. 
Some are surrendered or restricted — all the rest retained. 



69 

But the collective body does not acquire any sovereign 
rights over the subjects or citizens of the confederate 
States ; created by the contract of alliance, it operates 
only on the parties to the contract, the States themselves. 
The Confederation failed, and it is material to observe 
why. It failed, not because the apportionment had been 
badly made ; not because the powers and attributes 
lodged in the collective body were too few or too limited 
in their range ; but because they existed only on paper, 
and the body ostensibly clothed with them was, as 
Washington said, a shadow for want of ability to enforce 
them. It failed because, the power of coercion being 
wholly wanting, there was not in the States themselves 
that generous sense of a common obligation, that cogent 
sense of a conmion interest, which could alone supply 
its place. The debts contracted by Congress they would 
not pay ; the treaties concluded by it they would not 
perform ; and there were no means of compelling them 
to do either. Hence discord, impotence, discredit, and 
premature decay. The remedy invented by the framers 
of the Constitution was proportioned with great exact- 
ness to the disease. The apportionment of powers was 
left in the main unaltered, the attributes of Congress 
under the Confederation and under the Constitution 
were (with some not very important exceptions) the 
same". What Avas done was to make them real and 
efiective in the only possible way, by making them 
operate directly on the people of the States instead of 
on the States themselves. This, however, gave them 
a force and character entirely new. The dead semblance 
of a government became full of life as soon as it was 
armed with authority to raise its own taxes, employ its 

' See Articles of Confederation, Arts. 6, 9 : Constitution, Art. 
i. S3. 8—10 ; Art. iii. s. 3; Art. iv. ss. 3, 4j and Art. v. 



70 

own officers, levy and maintain its own army. These 
new authorities, again, called for an executive to wield 
them, and demanded, besides, a radical change in the 
composition of the Legislature whose decrees they were 
created to enforce. The principle of delegation, of as- 
signing equal votes to communities immensely differing 
in population and resources, must be abolished wholly or 
partially — for that is essentially federal, and, within the 
sphere over which the powers of the central Legislature 
were to extend, the federal principle had been virtually 
destroyed. Thus on the ruins of that old Congress, 
which was a mere Federal Diet, arose a House of Re- 
presentatives which was a Parliament, a Senate in which 
the features of Parliament and Diet were combined, and 
a President who stood at the head, not merely of a Con- 
federation, but of a people. Yet, vast as this revolution 
was, it was confined, as has been said, to a limited part 
of the wide field over which the ordinary powers of 
government extend. Within that limit the States were, 
as the French say, " effaced," and reduced to little more 
than so many geographical divisions. But outside of 
it they remained what they were before. They were 
left, as before, in the possession of all the powers of 
government except those expressly vested in the Union, 
and in the exercise of these powers they remained as 
independent of President and Congress as if neither 
President nor Congress existed. When a Federal tax 
is to be collected, or a sentence of a Federal Court ex- 
ecuted, in Ohio, the authorities of the Union act as ab- 
solutely as if there were no such State as Ohio. If the 
law of descent or of partnership is to be changed in 
Ohio, or if Ohio chooses to remodel its whole statute- 
book, or change its whole form of government, (keep- 
ing within the bounds of republicanism,) then Ohio 



71 

acts as if there were no such thing as the Union. 
Thus over every American citizen, over every square 
yard of American soil, there are two distinct Govern- 
ments, two distinct sets of powers and authorities, work- 
ing simultaneously and quite independently of each 
other. And it is demonstrably certain that the whole 
American people is not sovereign, in the true sense of 
the word, over a single citizen of New York. !For the 
powers of sovereignty, in the contemplation of law, are 
illimitable, that is, are bounded by no legal restraint ; the 
British Parliament, which is the depositary of the legis- 
lative powers attached to the national sovereignty in Great 
Britain, is not legally restrained, as ]Mr. Austin rightly 
says, from abolishing the Church Establishment in Eng- 
land or the Presbyterian Establishment in Scotland ; and 
an Act abolishing either would be valid as a law, though 
a clear violation of the Articles and Act of Union ^ The 
Taxing Acts, against which America rebelled, were per- 
fectly legal ] an Act abolishing the constitutions of New 
Zealand and New South Wales, and reducing them to 
the position of Crown colonies, would be perfectly legal. 
But the powers exercisable by the American people 
under the Constitution, and through their legislative 
organ, the Congress, are subject to legal restraints of 
the most stringent character, and an Act passed in 
excess of them would be not merely a piece of oppres- 
sion or tyranny, — for the most flagrant oppression and 
tyranny may be perfectly legal, — but it would be an 
illegal act. It would be no law at all ; it would be 
declared waste paper by the Supreme Court ; and an 
attempt by the President to enforce it would be no bet- 
ter than a riot. And the aggregate American pco})le 
has not, and never had, any legislative power at all, 
^ Austin's Province of Jurisprudence determined, 222, ed. 1861. 



72 

except under the Constitution. If, then, it is true that 
the United States are a nation because their constitution 
within certain Hmits is national, I do not see how we 
can avoid saying that they are a confederation because 
beyond those hniits it is federal ^. 

g Catching at the word " supreme" in Art. vi. s. 2, people some- 
times argue that because the Constitution, which defines tlie 
relation between the Union and the States, is declared to be 
supreme, therefore the Union is supreme ; or that the Union is 
supreme generally because it is so whilst acting pursuant to the 
Constitution — that is, witliin the circle traced out for it by the 
Constitution. The power of amendment, Art. v., to which Mr. 
Austin has referred, p. 223, is also sometimes insisted on for the 
same purpose. By that Article amendments are to be made by 
a Convention called by Congress, whenever two-thirds of both 
Houses shall deem it necessary, or on the application of two-thirds 
of the States, and the amendments are to be valid when ratified 
by the Legislatures in three-fourths of the States, or by Conven- 
tions in three-fourths thereof. This Article, whicli was proposed 
by Madison, is in fact one of the clearest evidences of the com- 
posite character, at once national and federal, of the Constitution. 
The effect of it is this, that each State submits itself to legislation 
by the aggregate American people (yet not by a simple majority 
of them) jointly ivith three-fourths of the States as States. But 
it does not submit, — on the contrary, it carefully guards itself from 
submitting, to the will of a majority of the American people, or 
to the will of a majority of the body of States, or to both together. 
The conclusion, therefore, which Mr. Austin deduces from this 
Article, that "the sovereignty of each of the States, and also 
of the larger State arising from the Federal Union, resides" — 
he is careful not to say, in the American people, but — " in the 
States' Governments as forming one aggregate body," must be 
read with caution. 

It is sometimes asked whether, in the event of a collision be- 
tween the Union and a single State, the latter is not bound to 
give way. It would be impossible to frame a proposition more 
directly contrary to the Constitution. The party bound to give 
way is the party which is in the wrong ; the only criterion of that 
is the Constitution itself", and the only authorized interpreters of 



73 



The Constitution of the United States is thus, from 
beginning to end, a compromise. It holds in combination 
two principles, nicely, jealously, and elaborately balanced 
against one another ; it is, in fact, the compound result 
of two clashing influences which w^re simultaneously at 
work upon it at every stage of its construction, and there 
is hardly any part of it which does not shew visible 
marks of the forces by which it was beaten into shape. 
The proceedings of the National Convention, by which 
it was framed, shew this very clearly. As soon as that 
body was organized, two parties formed themselves within 
it, — a national and a federal party. The national party, 
which supported in the main every proposition tending 
to promote amalgamation and increase the powers of the 
central Government, consisted of the larger and more 
populous States ; the federal party, wdiich fought the 
battle of State independence, of the smaller and less 
populous. The first desired a radical change ; the 
second wished to perpetuate, with some modifications, 
the existing system. And the first (in curious contrast 
to the present state of affairs) was headed by Virginia 
and North Carolina, the second by New York. " On 
the one side," sa_ys the historian of the Constitution, " we 
find a strong determination, the result of an apparent 
necessity, to establish a Government in which the demo- 
cratic majority of the whole people of the United States 

the Constitution are the Judges, not the Legislature, of the 
United States. 

In "The Bank of Augusta r. Earle," Peters' Iieports,ii.n\. (1839,) 
it was decided that the rules of international comity apply to the 
States inter se, the Chief Justice declaring that " they are sove- 
reign States." " This is the first time," said Judge M'^Kinlay, who 
dissented from the judgment, " since the adoption of the Constitu- 
tion that any federal court has directly or indirectly attributed 
national power to any of the States of the Union." 



74 

should be the ruhng power, and in which, so far as State 
influence was to be felt at all, it should be felt only in 
proportion to the relative numbers of the people com- 
posing each separate community." The States which 
were animated by this determination were Virginia, 
Pennsylvania, North Carolina, South Carolina, Massa- 
chusetts, Georgia ; South Carolina and Georgia acting 
with Virginia, though inferior in population to New 
Jersey and New York''. On the other hand, a compact 
minority insisted that the States, which were sovereign 
and independent political societies, could neither law- 
fully nor safely abdicate that position ; and they steadily 
refused to place themselves " at the mercy of great com- 
munities, whose policy might overshadow and whose 
power might destroy them." This minority consisted 
of New York, New Jersey, Maryland, Connecticut, and 
Delaware. Rhode Island would have nothing to do 
with the Convention, and was never represented in it, 
her people deeming any approach towards centralization 
dangerous to their peculiar commercial interests and to 
their grand scheme for paying their debts in depreciated 
paper money. New Hampshire sent no delegates till 
the most important debates were over. 

The first division took place on a resolution, which in- 
volved the whole question at issue, " that a national 
Government ought to be established, consisting of a 
supreme legislative, executive, and judiciary." The dis- 
tribution of votes on this and on subsequent occasions 
was not uniform, but the line by which the two camps 
were divided may be traced, roughly and irregularly, 
from first to last. I cannot attempt here to examine the 

^ South Carolina voted, however, with New Jersey for electing 
the House of Eepresentatives by the States, instead of by the 
people directly, aud New York against it. 



75 

debates in detail ; but it will be enough for our purpose 
to take one or two salient points, such as the constitution 
of the Senate and the peculiar functions of the judiciary. 
The greatest and most momentous of all the debates in 
Convention tm'ned on the questions by whom — whether 
by the people or the States — the two branches of the 
central Legislature should be elected, and whether the 
representation accorded to the several States in each 
branch, or in either, should be equal, or proportioned to 
their population. " Neither party," we are told, was at 
first willing to adopt the suggestion " that the two ideas, 
instead of being opposed, ought to be combined, and that 
in one branch the people should be represented and in 
the other the States. The consequence was that the 
proportionate rule of suffrage for the first branch was es- 
tablished by a majority of one State only, and the Con- 
vention passed on, with a fixed and formidable majority 
wholly dissatisfied, to consider what rule should be ap- 
plied to the Senate '." 

" Two courses only remained. The basis of representation 
in the Senate must either be found in the numbers of people 
inhabiting the States, creating an unequal representation, 
or the people of each State, regarded as one, and as equal 
with the people of exerj other State, must be represented by 
the same number of voices and votes. The former was the 
plan insisted on by the friends and advocates of the ' national' 
system ; the latter was the great object on which the minority 
now rallied all their strength. 

" The debate was not long protracted ; but it was marked 
with an energy, a firmness, and a warmth, on both sides, 
which reveal the nature of the peril then hanging over the 

' Massachusetts, Pennsylvania, Virginia, North Carolina, Sontli 
Carolina, and Georgia were against equality of suffrage in tlio 
House of Representatives ; New York, New Jersey, and Delaware 
in favour of it. 



76 



unformed institutions, whose existence now blesses the people 
of America. As the delegations of the States approached the 
decision of this critical question, the result of a separation 
became apparent ; and with it phantoms of coming dissension 
and strife, of foreign alliances and adverse combinations, 
loomed in the future. Reason and argument became power- 
less to persuade. Patriotism for a moment lost its sway 
over men who would at any time have died for their common 
country. Not mutterings only, but threats even, were heard 
of an appeal to some foreign ally, by the smaller States, if 
the larger ones should dare to dissolve the confederacy by 
insistmg on an unjust scheme of government. 

" Ellsworth, of Connecticut, in behalf of the minority, 
offered to accept the proportional representation for the first 
branch, if the equality of the States were admitted in the 
second, thus making the government partly national and 
partly federal. It would be vain, he said, to attempt any 
other than this middle ground. jNIassachusetts was the only 
Eastern State that would listen to a proposition for excluding 
the States, as equal political societies, from an equal voice in 
both branches. The others would risk every consequence, 
rather than part with so dear a right. An attempt to deprive 
them of it was at once cutting the body of America in two. 

"At this moment, foreseeing the probability of an equal 
division of the States represented in the Convention, one of 
the New Jersey members proposed that the President should 
write to the executive of New Hampshire, to request the 
attendance of the deputies who had been chosen to represent 
that State, and who had not yet taken seats. Two States 
only voted for this motion, and the discussion proceeded. 
Madison, Wilson, and King, with great earnestness, resisted 
the compromise proposed by Ellsworth, and when the vote 
was finally taken, five States were found to be in favour of 
an equal representation in the Senate, five were opposed to it, 
and the vote of Georgia was divided." — [Curtis, pp. 140, 141.) 

The final expedient adopted to escape a dead-lock 
was a double compromise. The minority made a fur- 



77 

tlier bid, wliicli was accepted. The House of Repre- 
sentatives was to have the exclusive power of origi- 
nating money-bills. With this addition the Ellsworth 
pi'oposal was adopted, the larger States reluctantly 
giving way. 

The question very early arose, how the two autho- 
lities which I have described as co-existinc; throuohout 
the United States, — the authority of the several States 
and that of the Union, — could be kept from clashing 
with each other. Governor Randolph's plan, which was 
first brought forward, and formed the basis of the Con- 
stitution, contained a clause authorizing the use of force 
against a recalcitrant State; but Mr. Madison justly 
observed that this would be practically very like a decla- 
ration of w^ar, and would probably be considered by the 
party attacked as a dissolution of all its constitutional 
engagements : — words which may now be considered 
prophetic J. The readiest and most natural way w^as 
to subordinate the one authority to the other, by giving 
the Legislature or the Executive of the Union a negative 
on the acts of the States. Such a neo:ative mioht be 
general, or it might be confined to such acts as, in 
the opinion of the person or persons invested with 
it, were at variance w^ith the Constitution. The Eng- 
lish Crown, as we know, exercises a general power 
of disallowing at its pleasure the Acts of colonial legis- 
latures ; and there were some eminent men (Mr. Madi- 
son himself among the number) who wished to see such 
a power given to the American Senate ''. This would have 
made the Government of the Union really supreme, not 
only within its own limited sphere of action, but gene- 
rally, over the Governments of the States. But it was not 
done. The Convention did indeed, in the first instance, 
> Curtis, ii. 62. " Ibid., ii. 51. 



78 

adopt in committee a resolution that Congress should 
be empowered " to negative all laws passed by the 
several States contravening, in the opinion of the na- 
tional Legislature, the Articles of Union, or any treaties 
subsisting under the authority of the Union." But 
even this was ultimately struck out, and replaced by 
two substitutes, — by a harmless declaration, proposed 
by a vehement State -rights man, Luther Martin of 
Maryland, that " the Constitution, the laws of the 
United States made in pursua?ice thereof, and treaties 
made under the same authority," should be the " su- 
preme law of the land," — and by those remarkable pro- 
visions which vested in the Federal Courts the power 
to declare void any Act, whether of Congress or of 
a State Legislature, which the judges might deem con- 
trary to the Constitution ; to arrest, as it were, with 
one hand encroachments of the States upon the Union, 
and with the other encroachments of the Union upon 
the States \ 

Such in its general character being the Constitution of 
the United States, how was it enacted ? I will enumerate 
briefly the successive steps. The first was a resolution 
of the Federal Congress, introduced by the delegates 
from Massachusetts, and passed in February, 1783, which 
declared it expedient " that a Convention of delegates 
appointed by the several States should be held for the 
purpose of revising the Articles of Confederation, and 
reporting to Congress, and to the several Legislatures, 
such alterations therein as should, when agreed to by 
Congress and confirmed by the States, render the 
Federal Constitution adequate to the exigencies of go- 
vernment and the preservation of the Union." A Con- 
vention was to frame a draft, Congress to adopt, and 

' Art. vi. 



79 

the States to confirm it. This resolution exactly tallied 
with the provision made by the 13th of the Articles of 
Confederation, except that that article says nothing 
about a preliminary Convention. The Convention met, 
framed and adopted, after long debate, a draft Consti- 
tution, and reported it to Congress "". By Congress it 
was transmitted to the State Legislatures, " in order to 
be submitted to a Convention of delegates chosen in 
each State by the people thereof." And it was thus 
ratified accordingly. The reasons for this method of 
proceeding were simple and intelligible, and very agree- 
able to the temper of the American mind. The State 
Legislatures were indeed, in every State, the actual 
depositaries of political power ; but it might well be 
doubted whether they were authorized to transfer that 
power, or any portion of it, to a body external to the 
State, or to subject for ever the people of their own com- 
munity to the acts of a Legislature in which they would 
have perhaps an inconsiderable share. The practice of 
acting by conventions or committees, chosen spontane- 
ously and irregularly, had been familiar in every State 
from the very beginning of the Revolution ; and it 
would occur at once to every American as the proper 
and legitimate way of obtaining the assent of the com- 
munity to any large alteration in their political condition. 
The act was one which required the assent of the sove- 
reign power in each State, and the sovereign power re- 
sided in the people, the functions of the Legislature 
being limited and defined by law. But a resort to the 

™ There is a tradition that Washington, when about to sign it, 
rose from his seat, and, holding the pen in his hand, said, " Sliould 
the States reject this excellent Constitution, the probability is 
that the opportunity will never again ofier to cancel another iu 
peace. The next will be drawn in blood." — Cwtis, ii. 487. 



80 

people as the source of sovereign power within a parti- 
cular community does not destroy or suspend the sepa- 
rate existence of the community itself; nor is its identity 
drowned or lost because other communities are doing 
the same thing, for the same object, at the same time. 
And that the mode of proceeding did not (as has been 
very often contended by very high authorities) convert 
the ratification from a federal into a national act, in 
other words, from an act done by each community, 
separately and independently, into an act done by the 
American people in their collective capacity, wall be 
clear if we consider what those words mean. To up- 
hold the latter view is really to maintain that the rati- 
fication by a majority of the whole American people 
would have bound the minority, as a majority of all 
the French people elected Louis Napoleon Emperor, and 
as a majority of all the Savoyards are reckoned to have 
approved the annexation of Savoy ; that the people of 
the Eastern States, if they had all voted against it, could 
have been compelled to accept it as a law by the unani- 
mous votes of the people of the Southern States ; that 
this was the light in which the act was regarded at the 
time ; in a word, that the question submitted to the 
Convention of New York was not whether the State 
of New York should agree to the Union, though that 
was the only question which a majority in New^ York 
was competent to determine. Propositions evidently 
absurd and historically untrue. On the contrary, we 
know as a matter of fact that one main purpose for 
which Conventions were resorted to was to provide 
for the very possible contingency that some of the 
States might reject (as North Carolina and Rhode 
Island did) the new Union, and to enable those 
which adopted it to coalesce without them. "This 



81 

could only be clone," says j\Ir. Curtis, " by presenting 
it for ratification to the people of each State, who pos- 
sessed authority to vrithdraw the State Government 
from the Confederation, and to enter into any new re- 
lations with the people of such other States as might 
also withdraw from the old and accept the new system." 
I should not have dwelt on this point had not the oppo- 
site view been maintained, not only by an admirable his- 
torian like Mr. Motley, but by great American lawyers, 
like AA\4)ster and Story. But it is not in America alone 
that great lawyers sometimes suffer themselves to use 
words without attaching to them a distinct meaning. 

Let me wind up this review with a short quotation 
from Mr. Madison, to whom, next to Hamilton, the 
American Constitution is due, written at the time when 
he w^as the coadjutor, as well as the friend of Hamilton, 
and a few weeks after he had been supporting, in Con- 
vention, measures which would have made the Union 
still stricter than it is, — the general veto, for instance, 
and the principle of proportionate representation in the 
Senate : — 

" The proposed Constitution, even when tested by the rules 
laid down by its antagonists, is in strictness neither a na- 
tional nor a federal Constitution, but a composition of both. 
In its foundation it is federal, not national ; in the sources 
from which the ordinary powers of the Government are 
drawn, it is joartly federal and partly national ; in the ope- 
ration of these powers it is national, not federal ; in the 
extent of them, again, it is federal, not national ; and 
finally, in the authoritative mode of introducing amend- 
ments, it is neither wholly federal nor wholly national." — 
Federalist, Xo. xxxix. " 

" This number contains a very clear and succinct view of the 
whole subject. See also Madison's Letter to Mr. Everett, August, 
1830— Story, i. 375. 

G 



82 

I have travelled through details which I fear have 
been tedious to you, because it is impossible to form 
any clear ideas on this subject without attention to 
details. There has seldom indeed been a controversy 
in which conclusions of fact have been so freely built 
on mere words, or large conclusions of law on phrases 
having no precise legal signification. I think also that 
we may now understand how it is that the disputants 
have generally failed to close with each other, and how 
a Constitution framed with a wise and laborious solici- 
tude to reconcile conflicting tendencies, and compose 
practical differences, but with no pedantic anxiety about 
abstract principles, has furnished inexhaustible matter 
for argument to those whose eyes have been fixed on 
different sides of the shield. 

A constitutional lawyer is always on dangerous ground 
when he has to deal with cases arising out of rebellion 
or revolution. The .one attacks, the other overthrows, 
the law on which he is used to rely. His clue fails him, 
his lamp goes out, in that troubled atmosphere ; and he 
has a constant temptation to stray in search of other 
guides, and to confound morality with law. And an 
English lawyer would certainly fall into error who should 
overlook the essential difference between the constitu- 
tion of his own country and that of the United States. 
The will of Parliament, it has been sometimes said, 
is the British Constitution. The English Government 
(by which I mean the legislative and executive powers 
combined) cannot act illegally; the Government of the 
United States can ; and, in the view of law as well as 
in that of morality, there is a wide difference between 
armed resistance to a Government acting legally, and 
armed resistance to a Government acting illegally. In 
the present case, however, it is not even pretended that 



83 

Mr. Lincoln's Government, at the time when tliis war 
began, had been guilty of any illegal act ; the resistance 
to it was therefore clearly treasonable by the law of the 
United States, and it matters not a jot, from this point 
of view, whether the criminals were a handful of rioters, 
or the Legislature and people of a State. The Union, 
within the sphere assigned to it by law, is supreme ; 
the maintenance of Federal fortresses and the collection 
of Federal duties belong to that sphere ; the State of 
South Carolina in relation to these things was but a 
province, and her Legislature a mere provincial assem- 
bly ; and the levying of war for the purpose of attacking 
those forts or resisting the collection of those duties 
was clearly and undoubtedly treason. If Mr. Lincoln 
could catch Mr. Jefferson Davis, he would be warranted 
by law in hanging him, — as the English Government 
would have been warranted in hanging Washington in 
177G, Secession is here a word without legal meaning; 
it is merely a popular euphemism for that which the law 
calls treason. A man may prefer the name of seccder 
to that of rebel, but he can no more alter by doing so 
the character of his crime than a thief who should deny 
having stolen a purse, and candidly admit that he had 
taken it. 

This is all that the Constitution has to say on the 
subject. It is both national and federal, as we have 
seen, in relation to the same persons, but not in relation 
to the same transactions or object-matter. Considered 
with reference to its object, it is exclusively national or 
exclusively federal. Here it puts on its national, and 
puts off its federal, character. If you appeal to it as 
a national Constitution, this is its answer : if you appeal 
to it as a federal Constitution, it is silent. 

The only course therefore which is open to the Con- 

G 2 



84 

federates is to decline its jurisdiction altogether. Ac- 
cordingly tliey allege, in a confused way, that they have 
a right to throw it overboard, as a broken contract. Here 
we are out of the range of positive law. The question 
has become a question of morality, although light may 
be shed on it by legal maxims and legal analogies. 
Here the semi-federal character of the Constitution, and 
its early history, resume their importance, and the seces- 
sion (to use an indifferent word) comes before us, not 
stripped, like a criminal at the bar, of all that would be 
irrelevant to the legal issue of guilt or innocence, but 
coloured by its causes and motives, and surrounded by 
every qualifying circumstance by which it may be either 
aggravated or excused. The discussion has been pur- 
sued on both sides with great warmth and some in- 
genuity. What is the result ? The Southern argument, 
if you try to take hold of it, crumbles in your hands. 
" A compact broken in any part," they say, " is broken 
altogether." As a principle of law, that is not univer- 
sally true. " In the absence of any recognised arbiter, 
each party to a contract is judge of his own obligations 
under it." This proposition is either absurd or tautolo- 
gous ; absurd, if it means that each party is sole judge, 
(since, every obligation conferring correlative rights and 
the obligations themselves being interwoven, there must 
necessarily be as many judges as there are parties) ; 
tautologous, if it means anything else. " The Constitu- 
tion is a pact, not a law." The distinction between a law 
made by a people for itself, and a pact constituting and 
expressly declaring itself to be a law, is one which exists 
only in the mind ; and if the Constitution be in any 
sense a pact, it is one which is in form and substance 
indissoluble, and has not only imposed obligations on 
the contracting parties, but has essentially altered their 



85 

relative sfafus. "The Constitution lias been broken." 
Tlie only approach to a distinct allegation on this head 
is contained in the Report of the General Assembly of 
Virginia, and relates to the laws made in many of the 
Northern States concerning the surrender of fugitive 
slaves. These laws are certainly repugnant, if not to the 
letter of the Constitution, to its spirit". Tliey amount to 
a refusal on the part of the States to assist in any way 
the execution of the Federal law on the subject, and, 
in some instances at least p, they make the recovery of 
a fugitive so difficult and dangerous a proceeding as to 
be virtually impossible. Whether they are an actual 
violation of tlie Constitution may be a question ; they 
certainly run to the extre ne verge of it. Apart from 
this, the South insists on no tangible complaint, and 
produces, as far as I can discover, no intelligible justi- 
fication. 

The Northern argument turns chiefly on tlie difference 
between pact and law. And it would probably be suc- 
cessful if this question were to be discussed before a 
bench of jurists or in a school of metaphvsicians. But 
we arc here infer apices juris. And to whom are they 
addressed, these subtle and fine-drawn distinctions — this 
nice dissection of words and analysis of ideas — these 
dipqnisitions on points which men have disputed for 
nearly a century without convincing one another? 

They are addressed to a cluster of semi-independent 
communities, some of which can trace back their sepa- 
rate history to a period long before the Revolution, 
whilst others, having successively formed themselves on 
territory acquired by the Union, h;,ve been ;idiniltcd 

° Art. iv. s. 2. 

P This applies to r^Iaiue, YernioDt, Massacliusctts, Connecticut, 
and AViiScoasin. 



86 

into it on a footing of complete equality with the 
original States. These communities, differing many 
of them as widely as possible from their old associates 
in manners, laws, and interests, and jealous at all times 
of the least encroachment on their dignity or freedom, 
have been bound to the North and West by a tie essen- 
tially national in its character, yet slender and at best 
imperfect. Each, to its own citizens, is and has always 
been the immediate, though not the only, object of those 
feelings, and source of those benefits, which men ex- 
perience towards and receive from their country — has 
given them security of life and property, government, 
liberty, and by far the largest part of the laws under 
which they live — and has expected from them correspond- 
ing duties in return. The people of these communities, 
inhabiting a country larger than France and Germany, 
assert (whether rightly or wrongly, we in England can 
hardly take on ourselves to determine,) that the Union 
has ceased to be advantageous to them, and ceased to be 
just towards them ; that their interests are systematically 
sacrificed, and their laws and institutions attacked and 
endangered ; and they pour out against it a flood of 
complaints and reproaches as vehement to the full as those 
which formed the preamble to the Declaration of Inde- 
pendence, and not much more vague. And the scene 
of all this is a country which has treasured the right of 
revolt as the charter of its own freedom, and regarded 
the exercise of it as restrained only by motives of pru- 
dence, and needing no public justification except out 
of " a decent respect for the opinions of mankind ;" 
a country — the only one in the world — which has macb 
the theory of a social compact the basis of its insti- 
tutions ; whicli was the first to pronuilgate formally 
the doctrine that " all just governments derive their 



87 

power from the consent of the governed," and has never 
ceased to apphiud every apphcation of that doctrine 
abroad, nor to teach and proclaim it at home. 

I know, of conrse, that the Union as well as the 
States — nay, in some respects more justly and more 
strongly — can appeal to its history and its laws, to the 
benefits it has conferred, the prospects it opens, the 
interests it has cherished, the attachment it has inspired. 
I know what moral ties are woven by these benefits 
and by this long and intimate association. And 
the powerful motives which forbid the North to ac- 
quiesce patiently in a revolt that would make New 
Orleans the seat of a foreign power, and line with 
foreign fortifications the southern shores of Chesapeake 
Bay, are not perhaps sufficiently appreciated in England ; 
though, in a quarrel which arose mainly from the resist- 
ance, or apprehended resistance, of the North to the 
extension of the area of slavery, English sympathies have 
generally enlisted themselves, as was natural, on the 
Northern side. If those sympathies have in any degree 
been alienated, it is not for me to inquire why, or by 
whose fault, this has happened. But I think we may 
now see that the two principles balanced against each 
other in the Auierican Constitution have in fact repre- 
sented two classes of interests, two bodies of sentiment, 
two sets of traditions and institutions, two allegiances "^ ; 
that these diverse influences, the compromise between 
them having at length been rudely broken, arc now at 
strife with one another; and that Englishmen are not 
to blame if that which the North calls a wicked re- 
bellion is to them simply a civil war. 

Suffer me, in conclusion, to add a few words on a sub- 

'' I do not use the word in its strict sense, though some States 
(1 know not liovv many) liave treason-laws of their own. 



ject with which these events have a direct connexion — 
the uses and imperfections of the federal principle of 
government. Federalism is an expedient for enabling 
a number of distinct societies to enjoy the chief advan- 
tages of a true national unity without submitting them- 
selves to its ordinary conditions ; to possess the security, 
the external strength, the majesty and influence, of a great 
nation, without making those sacrifices which the pro- 
cess of fusion, be it quick and violent, or imperceptible 
and slow, necessarily entails. It assumes the existence 
of common interests large and permanent enough to 
form the basis of an organic union, yet not powerful 
enough in themselves, or not armed with sufficient force, 
to subdue in the separate communities (as is at present 
being done in Italy) the love of independence, and the 
particular interest which each has, or thinks it has, in 
retaining the exclusive control of its own affairs. Such 
a state of things may arise from the gradual disintegra- 
tion of a great monarchy, or of a great republic ; or 
from a revolution cutting the link of a common alle- 
giance; or by simple aggregation. The theory is most 
engaging, and it has been hailed again and again as an 
invaluable discovery in political science ; but in practice 
it has rarely or never achieved all that was expected from 
it. There have been jars and dissensions, torpor and para- 
lysis ; foreign influence and intrigue have crept in on every 
side, and the machinery has failed to work well for want 
of sufficient motive power. It is because the German 
Confederation is unable to stir hand or foot that poli- 
ticians hold it so valuable to the tranquillity of Europe. 
In truth, though built to last for ever, these edifices 
have generally seemed adapted only for a period of 
transition ; they have had the air of temporary arrange- 
ments, even when expressly and solemnly declared to be 



89 

perpetual. Nor is this difficult to account for. In poli- 
tics there is nothing so hard to preserve as a balance 
of power. Political power is a force which does not stand 
still ; it waxes or it wanes. Thus the eiditeenth ccnturv 
was spent in adjusting and re-adjusting a supposed 
balance among the great monarchies of Europe ; and 
we all know how I^lackstone's elegant theory of the 
British Constitution has been destroyed by the inevit- 
able growth of the House of Conunons. In a federal 
system the common government is balanced, by the 
help of arrangements more or less artificial, against the 
particular governments. But it can rarely hold its own 
against them at the outset, and the disproportion has 
a natural tendency to grow^ The interests and feelings 
which they re})rescnt, if smaller, are busier and more 
active, multiply faster, and lie closer to the individual 
citizen, than those impersonated by the central govern- 
ment ; they command more influence and attachment; 
and if the force they arc armed with is less, they arc 
better able to use it. Where this tendency has been 
reversed or held in check, it has commonly been by the 
aggrandisement of some member of the confederacy, 
some Province of Holland or Canton of Berne, which, 
by establishing a hegemony, has made the central go- 
vernment in a manner its own ; by the necessity for 
sustained resistance to external dangers ; or by the rise 
of some common interest or sentiment (usually some 
form of ambition) powerful enough to overmaster the 
crowd of separate interests, its rivals. 

With these risks and disadvantages, the federal prin- 
cii)le has done great service, and all that can be objected 

"■ There are some good observations on tlie probability that 
tlie States of the Union would encroach on the Federal Govcru- 
nient, FedcraUnt, xvii., xlv., xlvi. 



90 

to it is, that it has fallen short of its aims. It is still 
a favourite with many political thinkers, and it is pro- 
bably destined to revive in untried forms hereafter. 
It was not entirely, perhaps, from a settled conviction 
of its expediency for Italy, nor as an experiment in poli- 
tical science, that a great potentate lately proposed the 
establishment of an Italian Confederation. But the 
project of a federal union among some of our own 
colonies, and even of connecting the mother country 
herself with her colonies in a relation substantially 
federal, has been often discussed amongst us, and pro- 
bably not for the last time. The formation in America 
itself of a cluster of clusters, a system of composite 
governments united by a federal alliance, is one of the 
possible results of this war. 

The American Constitution, which is a semi-federal 
system engrafted on an older and purely federal one, is 
undoubtedly the most beautiful and carefully wrought 
structure of its kind which the world has ever seen. It 
was constructed under the pressure of great practical 
evils, for which it appeared to offer the only adequate 
remedy — not by speculative theorists, but by men of 
eminent abilities, extensive political knowledge, and 
strong, practical good sense. No one, I think, can now 
read the collection of papers published in 1788 and 1789 
under the title of the " Federalist," for the purpose of 
winning over the reluctant State of New York, without 
conceiving the highest admiration for the two chief 
writers in it, who were likewise the chief authors of 
the Constitution — especially Alexander Hamilton. I 
know no finer model of political writing than some of 
these papers, from which De Tocqneville's view of the 
Constitution is mainly taken. The Constitution itself 
has hitherto answered, very fairly, the expectations formed 



91 

of it ; and De Tocqueville observes that, intricate as is 
the relation which it estabhshcs between the power of 
the Union and that of the States, he never met with an 
American who had any difficulty in saying how it woidd 
practically work in any particular case. American 
writers and orators have exhausted upon it, we know, 
even their copious stores of panegyric ; not even our 
own (which Hamilton thought the best in the world) 
lias received from its admirers such extravagant praise. 
It would admit, they affirmed, — and this in their eyes 
was its greatest merit, — an unbounded expansion of ter- 
ritory, an indefinite multiplication of new States : the 
able historian of the Constitution, writing three years 
ago, declares that there is no imaginable variety of race, 
climate, situation, occupation, and hereditary customs, 
vv'hich might not submit happily to its light control and 
find a suitable place within so elastic and comprehensive 
a system. Yet this extension has proved to be a real 
danger. The separate interests of the States have mul- 
tiplied, and that jealousy of the central power which 
calls itself by the name of Democracy has almost from the 
very first been the most active and powerful element in 
American politics. Jefferson long ago looked forward 
to the disruption ; in his view it was fast becoming 
a mere question of time. He was ready, in 1803, when 
some anticipated from the acquisition of Louisiana a fu- 
ture division of the Union into an Atlantic and a Missis- 
sippi confederacy, to say gaily, " Let them part by all 
means if it is for their hap])iness to do so. It is but the 
elder and the younger son differing. God bless them both, 
and keep them in union if it be for their good, but sepa- 
rate them if it be better." But his fears were thoroughly 
aroused in 1820, when at the time of the Missouri con- 
troversy he saw a principle of poHtical discord becoming 



92 

coincident, as he thought, with a particular geographical 
line, that hue coinciding eastwards with the Potomac. 
He thought that destined to be fatal^ What he antici- 

^ In 1798 he writes to a friend who had said "that it was not 
unwise now to estimate the separate mass of Virginia and North 
Carolina with a view to their separate existence," — " It is true," he 
answers, "that we are completely under the saddle of Massachusetts 
and Connecticut, and that they ride us very hard, cruelly insulting 
our feelings, as well as exhausting our strength and subsistence. 
Their natural friends, the three other eastern States, join them 
from a sort of family pride, and they have the art to divide certain 
other parts of the Union so as to make use of them to govern the 
whole. . . . But if on a temporary superiority of one party, the 
other is to resort to a scission of the Union, no federal Govern- 
ment can ever exist. If to rid ourselves of the present rule of 
Massachusetts and Connecticut we break the Union, will the evil 
stop there ? Suppose the New England States cut oif, will our 
natures be changed? Are we not men still, to the south of 
that, and with all the passions of men ? Immediately we shall see 
a Pennsylvania and a Virginia party arise in the residuary con- 
federacy, and the public mind will be animated by the same party- 
spirit. "What a game, too, will the one party have in their hands 
by eternally threatening the other that, unless they do so and so, 
they will join their northern neighbours. If we reduce our 
Union to Virginia and North Carolina, immediately the conflict 
will be established between the representatives of these two 
States, and they will end by breaking into their simple units. 
Seeing, therefore, that an association of men who will not quarrel 
with one another is a thing which never yet existed, from the 
greatest confederacy of nations down to a town meeting or 
a vestry; seeing that we must have somebody to quarrel with, 
I had rather keep our New England associates for that purpose 
than see our bickerings transferred to others. They are circum- 
scribed within such narrow limits, and their population is so full, 
that their numbers will ever be in the minority, and they are 
marked like the Jews with such a perversity of character as to 
constitute from that circumstance the natural division of our 
parties. . . . Better keep together as we are, haul off from Europe 
as soon as we can, and from all attachments to any portions of it, 
and if they shew their power just sufficiently to hoop us together, 



93 

pated has actually occuiTed. In 1S26 Georgia, on no 
greater provocation than a petty quarrel about her deal- 
it will be the liapijiest situation iu which wo can exist." — Letter 
to Mr. Taylor, Jcjfcrsons Memoirs and Correspondence, iii. 399. 

In August, 1803, when the cession of Louisiana was under dis- 
cussion, he wrote to Mr. Breckenridge : — " These federalists see 
in this acquisition the formation of a new confederacy embracing 
all the waters of the IMississippi on both sides of it, and a separa- 
tion of its eastern waters from us. These combinations depend 
on so many circumstances which we cannot foresee, that I place 
little reliance on them. We have seldom seen neighbourhood 
produce affection among nations. The reverse is almost the 
universal truth. Besides, if it should become the great interest 
of those nations to separate from this, if their happiness should 
depend on it so strongly as to induce them to go through that 
convulsion, why should the Atlantic States dread it? But espe- 
cially why should we, their present inhabitants, take side in such 
a question ? When I view the Atlantic States procuring for 
those on the eastern waters of the Mississippi friendly instead of 
hostile neighbours on its western waters, I do not view it as an 
Englishman would the procuring future blessings for the French 
nation, with which he has no relations of blood or affection. The 
future inhabitants of the Atlantic and Mississippi States will be our 
sons. AVe leave them in distinct but bordering establishments. 
We think we see their happiness in their union, and we wish it. 
Events may prove it otherwise. Why should we take part with our 
Atlantic rather* than our Mississippi descendants ? It is the elder 
and the younger son differing. God bless them both, and keep 
them in union if it be for their good, but separate them if it be 
better."— 7&. 521. 

But in 1820 : — "Although I had laid down, as a law to myself, 
never to write, talk, or even think of politics, to know^ nothing of 
public affairs, and therefore had ceased to read newspapers, yet 
this Missouri question aroused and filled me with alarm. The old 
schism of federal and republican threatened nothing because it 
existed in every State, and united them together by the fratcrnism 
of party. But the coincidence of a marked principle, moral and 
political, with a geographical line, once conceived, I feared would 
never more be obliterated from the mind, that it would be recur- 
ring on every occasion, and renewing irritations until it woidd 



94 

iiigs with the Indian tribes, threatened secession and a 
Southern confederacy, and South Carohna in 1831 went 
to the very verge of revolt in resistance to the protective 
tariff, and partly attained her ends. The tariff and 
slavery have come by degrees to divide North from 
South by an inveterate antagonism of interest and 
opinion ; and the line of demarcation is the line of the 
Potomac. And now the disruption has come; and 
neither the sentiment of an enlarged patriotism, nor the 
pride with which every American has been accustomed 
to look back to the past and forward to the future of his 
country, nor that thick overgrowth of public and private 
interests which has gradually covered every stone and 
pillar of the Union and seemed to knit it firmly together, 
nor those obscure but certain evils which must attend 
its fall, have been sufficient to prevent the catastrophe. 
Whether that Union which extended from the Gulf of 
Mexico to the banks of the St. Lawrence can in any 
form be cemented again, we have yet to see. " Near 
friends falling out," Jefferson has said, " never reunite 
cordially." Mr. Seward, indeed, has told all the Powers 
of Europe, officially and authoritatively, to dismiss from 
their minds the possibility of a separation ; the great 
American Commonwealth, he declares, will stand here- 
after, as it has stood hitherto, " an object of human 

kindle such mutual and mortal hatred as to render separation pre- 
ferable to eternal discord. I have ever been amongst the sanguine 
in believing that our Union would be of long duration. I now 
doubt it much, and see the event at no great distance, and the 
direct consequence of this question, not by the line which has 
been so confidently counted on, — the laws of nature control this, — 
but by the Potomac, Ohio, and Missouri, or more probably the 
Mississippi upwards to our northern boundary. My only comfort 
and confidence is that I shall not live to see this." — Letter to 
Mr. Short, iv. 329. 



95 

wonder and liiinian affection." I know not liow this 
may be, but I think we may be sure that a Union ce- 
mented in blood cannot and will not be the old Union. 
A constitution " ordauicd and established," not eighty 
years ago, " to insure domestic tranquillity" and " es- 
tablish justice," cannot survive untarnished, if it survive 
at all, a civil war in which one-third of the American 
people have been arrayed against the other two, and 
which has already led to something very like a military 
dictatorship — to the destruction of the freedom of the 
press, to arbitrary arrests, to the suspension of the right 
of habeas corpus and of trial by jury \ Like the feet 
of the great image, it was made of iron and clay ; the 
iron has not mingled with the clay, and it " is partly 
strong and partly broken." 

All Souls' College, 
Nov. 8, 18G1. 

* See Note B at the end of Lecture I. 



|hiittcb bi) li^tssrs. |1nrbr, Conunurhef, (Djtforb. 



LRBAp'26 



771^ 



